“According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically.”

So begins United States District Court Judge James Boasberg’s opinion yesterday that officially invalidates the new NLRB election rules – for now, anyway.   A lot of interesting legal issues were before him in the case, but he based his opinion on one narrow and technical issue – whether the Board constituted a proper quorum when the final vote on the rules took place.   The Court answered “no.”

Going back to last year, the Board held a public hearing on the proposed rules on November 30.   There was rampant speculation that Member Hayes might not participate in that hearing and thus deprive the Board of its required three member quorum.  Hayes decided not to do that, showed up, and voted no.   At the end of that meeting, it was determined that a final rule with the exact language would be drafted.

On December 14, 2011, Chairman Mark Pearce distributed an email to the other Board members containing a draft Order directing that the final rule be published in the Federal Register.    Chairman Pearce and Member Becker voted yes by email, and Hayes voted no again.  On December 16, 2011, a final version of the rule itself was circulated electronically.   Pearce and Becker voted to approve the rule.  Hayes did not vote at all.  From an affidavit cited in the ruling, it does not appear that Hayes failed to vote out of ill-will—rather he just thought that his December 14 vote was enough and “[he] gave no thought as to whether further action was required of [him].”

The Court gave plenty of thought as to whether further action was required and found that further action was indeed required.  The Court found that by failing to say anything in response to the December 16 distribution, Hayes “simply did not show up – in any literal or even metaphorical sense.”   And by failing to show-up, the Board lacked a proper three-member quorum.   The Court stated that:

“He simply did not show up – in any literal or metaphorical sense. Had he affirmatively expressed his intent to abstain or even acknowledged receipt of the notification, he may well have been legally “present” for the vote and counted in the quorum. Had someone reached out to him to ask for a response, as is the agency’s usual practice where a member has not voted, or had a substantial amount of time passed following the rule’s circulation, moreover, it would have been a closer case. But none of that happened here. In our prior world of in-person meetings, Hayes’s actions are the equivalent of failing to attend, whether because he was unaware of the meeting or for any intentional reason.  In any event, his failure to be present or participate means that only two members voted. . . .”

As a result, because only two members voted, the Board lacked a quorum, and because the Board lacked a quorum, the rule is invalid.   A technical ruling, for sure, but the end result is that the rules are out, for now.

The question is – what will the Labor Board do to cure this defect?   Presumably, the three Democrat members of the Board could get together today, re-vote to approve the rules, re-publish them in the Federal Register, and the rules would take effect again sometime in the future.   Because the Judge failed to rule on the merits of the case, this also means that the Chamber of Commerce and other organizations would probably file another lawsuit challenging the rules and we would be back to square one.   It seems highly unlikely that given the amount of time and resources the NLRB has spent on these rules that the Board will just let this ruling stand.