|June 14, 2012|
Previously published on June 12, 2012
As we reported in previous legal updates, on May 14, 2012, a federal court found that the National Labor Relations Board's ("Board") expedited union representation election rules were invalid because the Board had enacted them without its required three-member quorum. The court found the Board had improperly enacted the rules by circulating them for voting and forwarding them for publication on the same day, before the required third Board member, Hayes, had an effective opportunity to cast his vote. While the court found that Hayes was included in electronic communications on the rule changes, he was not present when the rule changes were approved. Therefore, the court found Hayes did not count towards the required three-member quorum.
On June 11, 2012, the Board filed a motion asking the court to reconsider its decision. The Board's motion argues that Hayes was "present and participating" in an "electronic voting room" where Board chairman Pearce and then-Board member Becker approved the rule changes, which meant that the Board had the required three-member quorum.
Because Hayes voted on other matters that day in the "electronic voting room," the Board's motion argues he was "present in the Board's electronic voting room" when the vote on the rule changes was taking place, and he was merely abstaining from voting when he did not act on an electronic task requesting his vote. The motion then argues that Hayes' abstaining from voting did not deprive the Board of its needed three-member quorum. Thus, the Board's motion contends that it properly adopted the rule changes. The Board's motion asks the court to vacate its order striking down the rule changes.
We will continue to monitor these proceedings and keep you apprised of developments as they occur.