The U.S. District Court for the District of Columbia has rebuffed the National Labor Relations Board (NLRB) in its appeal of the court's May 14 ruling that it lacked a quorum when it passed a rule for expedited union elections that took effect on April 30, but has since been suspended pending legal proceedings.
The court in May ruled that only two members had actually voted for the rule: Chairman Mark Gaston Pearce and former member Craig Becker. The NLRB argued that member Brian Hayes had effectively voted in absentia by voicing his earlier opposition in another proceeding. The court noted that to meet the Supreme Court's quorum standard, Hayes had to have been present to make it three voting members.
In its appeal, the NLRB argued that Hayes was actually present in the electronic voting room on the day of the election rule vote, and in fact had cast his vote on other matters.
In denying the NLRB’s motion, District Court 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.’” Even had this information been offered earlier, the judge said, “it likely would not have changed the outcome even then, and it certainly does not establish ‘clear error’ or ‘manifest injustice' now.”