[author: Mark Theodore]

If only everyone had just showed up and voted we wouldn't be in this mess. As previously reported, the NLRB's attempt to promulgate the so-called ambush election rules was dealt a setback when a federal district court ruled in May that the Board did not have a quorum at the time the vote was held. Undaunted, the agency filed a motion a Motion to Alter or Amend the Judgment. On July 27, 2012, Judge Boasberg of the District of Columbia Federal District Court denied the NLRB's Motion in U.S. Chamber of Commerce and Coalition for Democratic Workplace v. NLRB (CA No. 11-2262).pdf

The Board's motion essentially attempted to explain why an actual quorum was present on the day of the vote, mostly by circumstantial evidence. The judge took issue with why the evidence had not been presented earlier:

The new evidence, though presents a closer question. An affidavit submitted with the Board's Motion sets forth facts entirely absent from its summary-judgment filings, and those facts do somewhat strengthen the agency's positon that [Board Member] Hayes was present for but abstained from the pivotal vote. That said, the Board has neither adequately explained why it could not have presented this evidence at the summary-judgement stage nor established that the Court's finding was 'clear error.'

The crux of the case was that at the time of the vote on the rules in December, even though the Board had the requisite number of members to adopt the rules, there was no record that Member Hayes had voted or abstained. Thus, the facts are that while Member Hayes was present at the agency on the day of the vote (indeed, he appears to have voted on other matters), there was no evidence that he did anything with respect to the vote to adopt the regulations--either actually voting or consciously abstaining. There is no question that Member Hayes opposed the regulations and likely would have voted to reject them, however, as the Court ruled previously, one cannot draw an inference from his mere stated opposition to the rules. As to the new evidence, the Court ruled it too fell short of establishing that a quorum existed:

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' 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. 

Interestingly, the Judge reiterated what he said in his initial ruling, that nothing "appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has a desire to do so." Which begs the question- why didn't the agency just hold another vote? Could it be that the upcoming election is causing the agency to take a slow course? It will be interesting to see if the agency appeals this ruling to a federal appeals court.

Whatever the reason, for now, the ambush election rules are still on hold.