The NLRB has filed a motion asking District of Columbia District Court Judge James Boasberg to amend his ruling that struck down the Board’s election reform rules because the Board did not have a quorum of three members when it passed the new rules. The motion also asks the court to reinstate the election rules pending a final judgment in the case of Chamber of Commerce v NLRB.

The court struck down the election rules last month, finding that because Member Brian Hayes did not participate in the final vote, the Board lacked the three-member quorum as established in the Supreme Court’s New Process Steel decision. According to the Board’s motion, the court did not understand the mechanics of the Board’s electronic voting room. The Board contends that Hayes was actually present in the electronic voting room when voting took place on the rules on December 16, 2011. According to the Board, while in the electronic voting room and while the voting on the rule was underway, Hayes simultaneously participated in votes on other matters. The Board says that Hayes intentionally abstained from voting on the rule, but that because he was in the room at the time of the vote, a quorum existed.

The Board presented evidence to the court showing that on the morning of the vote, former Member Craig Becker amended the proposed rule. Chairman Mark Gaston Pearce then amended and modified the changes made by Becker, who minutes later, approved Pearce’s changes. After that sequence of events, Pearce used the electronic voting system to circulate the final draft of the rule.

In its motion, the Board contends that the circulation was intended solely for Hayes because he was the only member who had not voted on the rule. This, according to the Board, gave Hayes a “task,” namely the review of the rule. Hayes was also asked to vote on the rule. Instead, according to the Board, Hayes abstained. He was not, however, “absent” which would have deprived the Board of its quorum. The Board submitted evidence showing that Hayes’ staff accessed the electronic voting system and that Hayes ordered his staff to vote on 18 different issues while the election rule was pending. The Board further contends that Hayes’ chief counsel opened Pearce’s call to vote on the rules. Thus, according to the Board, not only was Hayes present, he was participating in the electronic voting room when the vote was taken.

The Board further argued that on December 15, 2011, the day before the vote on the election rules, Hayes was an active participant in the voting process. Hayes had also previously stated that he did not want to obstruct the Board’s processes.

Source: WKL&B Editorial Staff