On Friday the U.S. District Court for the District of Columbia denied the National Labor Relations Board’s motion to reconsider the court’s May 14 finding that that the Board’s expedited representation election rule was invalid due to lack of a statutorily-mandated quorum when the Board approved the rule in December 2011. A year earlier, the U.S. Supreme Court held in New Process Steel that the Board must act with at least three sitting members to exercise its full authority. In the case at hand, the D.C. federal court agreed with arguments made by the U.S. Chamber of Commerce and Coalition for a Democratic Workplace that the agency did not have the authority to adopt the election rule, as only two members – Chairman Mark Gaston Pearce and former member Craig Becker – actually cast votes in the rule’s favor. Member Brian Hayes had voted against an earlier version of the rule and declined to participate in the December vote.
In its efforts to persuade the district court to revisit its decision, the Board presented new evidence to support its position that Member Hayes was present in the electronic voting room the day of the election rule vote, and in fact cast his vote on other matters. The court’s memorandum opinion (pdf) issued by Judge James Boasberg, however, states that this information was “offered too little too late.” In denying the NLRB’s motion, Judge Boasberg emphasized that “the Board has neither adequately explained why it could not have presented this evidence at the summary-judgment stage nor established that the Court’s contrary finding was ‘clear error.’” Even if this information had been offered earlier, the judge claims that “it likely would not have changed the outcome even then, and it certainly does not establish ‘clear error’ or ‘manifest injustice now.’”
The Board already suspended the election rule’s implementation and withdrew related guidance. It is expected that the Board will appeal the July 27th decision, and the matter will ultimately be resolved by the appellate courts.