As we reported in May, the United States District Court for the District of Columbia invalidated the NLRB’s proposed “quickie” election rules, on the grounds that the Board lacked a proper quorum on the day of voting. Member Brian Hayes never formally voted on the rules, though he did indicate in the days before the electronic vote that he opposed them. The NLRB believed apparently that this opposition was enough, procedurally. The Court held otherwise, concluding that Hayes never actually showed up for the electronic vote, a quorum was not constituted, and any action adopting the rules was invalid. The Board asked the Court to reconsider its decision. The Court has done so and reached the same result as before: the election rules are still invalid.
The NLRB focused on two points – first, that Member Brian Hayes’ participation in some pre-voting activity should “qualify him for inclusion in the quorum.” This argument was made during the first round of legal wrangling and rejected by Judge Boasberg—it was rejected again in the latest ruling as well.
The argument that presented a “closer call” was an affidavit submitted by the “principal architect” of the Labor Board’s “electronic voting room.” He swore that the other two Board members voted on the final rule at 11:54 a.m. and 12:05 p.m. respectively and that approximately 20 minutes later, the Chairman created a voting task asking Member Hayes to vote. His counsel “opened” the task at 12:37 p.m., thus leading the Labor Board to conclude that Member Hayes was part of the quorum.
The Court rejected this argument, for several reasons. First, the Court found that the Board failed to make this argument at all during the original proceeding. It seemed that since this was the “first time” this argument was raised, the Court found it less credible. Next, the Court said that while this evidence was “useful,” it was not enough to establish that Hayes was present for this specific vote, that there was no evidence that Hayes’ employees were authorized to vote or abstain in his place, and that there was no evidence that the Board waited to send the Rule to publication until after Hayes’ staff member opened the task at 12:37 p.m. The Court found nothing in the final rule stating that Hayes abstained. Instead, the Court held that Hayes was under the “misimpression” that by opposing the rule in the previous days he had effectively voted against the rule.
Ultimately, the Court held that the NLRB’s new evidence was “too little too late.” As a result, the NLRB’s new election rules are still invalid.