On Friday District of Columbia District Court Judge James Boasberg issued an opinion reaffirming his ruling striking down the National Labor Relations Board’s "quickie election" rules in Chamber of Commerce of the United States of America v. NLRB, Civil Action No. 11-2262.
In June the NLRB filed a Motion to Amend or Alter Judgment asserting that Member Brian Hayes’ statements and actions prior to the December 16th vote to adopt the new election rules should qualify him for inclusion in the quorum, and that a newly submitted affidavit constitutes "proof that on December 16 Member Hayes was present in the Board’s electronic voting room." Judge Boasberg rejected both arguments.
The court easily disposed of the NLRB’s first argument:
Although this argument expands and improves upon that which the agency previously espoused, the Court has already rejected its core:
Myriad subsidiary decisions are required in the process of promulgating regulations, but it is the final decision to adopt (or not to adopt) a given rule that transforms words on paper into binding law. That decision, which in this case took place on December 16, 2011, required a quorum.
The affidavit presented by the NLRB in support of its second argument, however, presented a "closer question." The affidavit describes the electronic voting room and provides details on what occurred in that "virtual space" on December 13-16, 2011. Specifically, it asserts that all three members were actively voting on various matters those days, that Hayes himself directed 18 votes to be cast on December 16, the Chairman electronically circulated the new election rules to Member Hayes creating a "voting task" asking Hayes to cast his vote, and that Member Hayes’ deputy chief counsel electronically "opened" the task 19 minutes later. By virtue of this evidence, the NLRB asserts that Hayes "was actually present and participating in the very same room at the very same time that this vote was held."
In response to this argument, Judge Boasberg first chastised the agency for its failure to present this evidence earlier:
But where was this evidence and corresponding argument at summary-judgment time? The newly presented facts about the electronic voting room were not previously unavailable. Defendant simply chose not to include them.
Ultimately, the agency’s insistence that it was blindsided by Plaintiffs’ argument that Hayes did not participate in the vote does not hold water.
Second, even if the evidence were timely, Judge Boasberg found that the new evidence would not have changed the court’s prior ruling striking down the new election rules:
While Burnett’s affidavit certainly buttresses the agency’s position, it by no means achieves this demanding standard. First, Hayes’s presence for and participation in other votes taken that day do not necessarily establish his presence for the vote in question. He must have been present for this vote to be counted toward this quorum. Second, even if Hayes’s employees were authorized to cast votes on his behalf with respect to the other actions up for consideration that day, there is no indication that they were authorized to vote or abstain on his behalf with respect to the decision to adopt the final rule. Indeed, Hayes’s statement that after December 15 he simply “gave no thought to whether further action was required of [him]” with respect to the final rule belies that possibility. Third, even assuming that specific authorization was not required and Hayes’s deputy chief counsel’s opening the voting task could be attributed to Hayes, the NLRB has not provided any indication that the rule was sent for publication after that took place. In fact, the Board’s consistent position has been that the Solicitor published the final rule in the Federal Register “[i]mmediately upon approval of a final rule by a majority of the Board.” … In sum, then, even if Hayes’s deputy’s opening the voting task could be taken as Hayes’s participation and subsequent abstention, the agency has not shown that this purported abstention occurred prior to publication, let alone that Hayes was given a reasonable amount of time to cast a vote.
Despite Judge Boasberg’s decision reaffirming his prior ruling, employers should continue to monitor this case and any action by the NLRB regarding the new election rules as the NLRB has two possible options for reinstating them. First, it can appeal Judge Boasberg’s rulings to the Court of Appeals for the District of Columbia. A second option is for the Board to take matters into its own hands and hold an expedited vote on the "quickie election" rules now that it currently has four Board members, three of which–Chairman Pearce and Members Griffin and Block–presumably will vote in favor of the new rules. However, even this second option does not guarantee the enforceability of the new election rules because the recess appointments of Griffin and Block are currently being challenged in Canning v. NLRB, Case No. 12-1115 (D.C. Cir.). If that challenge is successful, then any new vote on the "quickie election" rules would be null and void under New Process Steel. We will certainly keep you posted.