NLRB Representation Rule Still Invalid

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[author: SCOTT T. SILVERMAN]

On July 27, 2012, Judge Boasberg of the U.S. District Court for the District of Columbia denied the National Labor Relations Board’s ("Board") motion to reconsider his holding 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.  In his earlier decision,  Judge Boasberg had agreed that the agency did not have the authority to adopt the election rule, as only two members actually cast votes in the rule's favor. Member Brian Hayes had voted against an earlier version of the rule, but declined to participate in the December vote.  Thus, according to the D.C. Court, only two members participated in the vote, which was not a quorum.

In its effort to persuade the  D.C. 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.  Judge Boasberg held, however, 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.'" In conclusion, Judge Boasberg found no "manifest injustice" in denying the motion for reconsideration and upholding his earlier decision.

The Board already suspended the election rule's implementation, so the rule will continue to not apply to pending election proceedings. It is expected that the Board will appeal the decision, and the matter will ultimately be resolved by appellate courts.