The National Labor Relations Board filed a Motion to Amend or Alter Judgment yesterday in Chamber of Commerce of the United States of America v NLRB, Civil Action No. 11-2262, where District of Columbia District Court Judge James Boasberg struck down the NLRB’s "quickie election" rules because the NLRB lacked a quorum when it passed the new rules. The motion also asks that the new election rules be reinstated pending final judgment.

The NLRB’s motion asserts that:

The Court’s finding that the third member of the Board, Member Brian Hayes, did not "show up" or participate on December 16,2011, when the other two Board members voted, is predicated upon a mistaken understanding of the facts regarding the Board’s electronic voting room.

To correct this mistake, the Board is supplying the Court with proof that on December 16 Member Hayes was present in the Board’s electronic voting room. While the voting was occurring on this rule, he simultaneously participated in the votes taken on other matters, and deliberately abstained from voting on this rule. He opened, but did not act upon, the voting task in this rule.

The purported proof supplied by the NLRB does provide more detail regarding the steps taken by Chairman Pearce and Member Becker to finalize and approve the rule on December 16, 2011. The NLRB’s evidence shows that during the morning of December 16 Member Becker made changes to the proposed rule, which were then reviewed and modified by Chairman Pearce. Minutes later Member Becker approved those modifications. Chairman Pearce then used the Board’s electronic voting system to circulate the final draft of the rule. The NLRB asserts that Chairman Pearce’s action was intended only for Member Hayes, as he was the only one who had not voted, thereby creating a "task" for Member Hayes and "asking him to vote." 

At that point, the NLRB asserts, Member Hayes "abstained" rather than was "absent" during the vote. First, the NLRB presents evidence that Member Hayes’ staff accessed the electronic voting system and that Member Hayes "directed eighteen votes to be cast in the room on the 16th while the rule was pending." Second, the NLRB asserts that Member Hayes’ deputy chief counsel opened Chairman Pearce’s call to vote on the new election rules. The NLRB argues that these facts establish that Member Hayes was "present and participating in the very same room and at the very same time that this vote was held," and thus there was a quorum giving it authority to pass the new election rules.

The NLRB’s motion also asserts that not only was Member Hayes "present," but that he intentionally abstained from voting based on the fact that he actively participated in the process on December 15, 2011, and had earlier stated that he did not want to be obstructionist. However, these are not new facts, and were already considered by the court in its ruling on the motion for summary judgment.

As we set forth in a previous post, Judge Boasberg determined that on December 15th, Chairman Pearce’s staff emailed Member Hayes to determine whether he would be circulating anything to be published with the final rule. Member Hayes conveyed that he would not attach any statement to the Final Rule so long as, consistent with the Board’s December 14th Order, he would be able to add a dissent later on. However, and critical to Judge Boasberg’s decision, the rule was not yet in its final form as of December 15.

While the NLRB’s motion does present new facts suggesting that Member Hayes was "present" in the electronic voting room on December 16, it remains to be seen whether these new facts can carry the day for the NLRB. As Judge Boasberg found, it is undisputed that:

In situations where a particular Board Member has not voted and immediate action is desired, the Executive Secretary or Solicitor may convey, by phone or email, a request to act.

The NLRB’s motion presents no facts establishing that it notified Member Hayes that "immediate" action was desired on the December 16 call to vote. Moreover, the NLRB does not contest Judge Boasberg’s finding that there was no follow-up by anyone to confirm whether Member Hayes intended to vote as was the NLRB’s usual practice. Finally, the NLRB’s motion presents no evidence indicating how long the eighteen measures voted on by Member Hayes on December 16 were pending. If it turns out that Member Hayes did not vote on any measure circulated on December 16, or only voted on a minority of the ones that were circulated that day, the court might be reluctant to find that Member Hayes’ failure to mark his vote should constitute an abstention.