The NLRB recently filed a Rule 59(e) motion to alter or amend the United States District Court for the District of Columbia’s May 14th judgment that the NLRB’s so called “Ambush Election” rule was invalid because, at the time the NLRB voted on the rule, it was not adopted by the statutorily required three-member quorum of NLRB Members. 

In support of its motion, the NLRB restated its argument that Member Brian Hayes should be counted as part of the required quorum based on his prior statements and participation in preliminary votes.  The NLRB also argued that the court’s decision “is predicated upon a mistaken understanding” of the NLRB’s voting procedures.  The NLRB then provided a detailed description of its internal voting procedures and records that were alleged to demonstrate the participation of all three members in the vote regarding the rule.  However, none of the information was part of the record when the court made its initial decision.

The court promptly rejected the NLRB’s argument with regard to Member Hayes prior statements and participation in preliminary votes, holding that “Rule 59(e) is not a vehicle for rehashing arguments that have been previously rejected…”  Further, while recognizing that the new evidence regarding the NLRB voting procedures presented a “closer question,” the Court  rejected the NLRB’s request to alter its finding since the NLRB “neither adequately explained why it could not have presented this evidence at the summary-judgment stage nor establish that the Court’s contrary finding was ‘clear error.’”

In  rejecting the NLRB’s request, the Court reiterated “[N]othing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.”  Until then, the court cannot reinstate a rule that was promulgated without the requisite quorum and accordingly, in excess of the agency’s Congressionally delegated power.

On Tuesday, August 7th, the NLRB filed a notice of appeal with the D.C. Circuit.