Bloomberg News

NLRB Asks Court to Reconsider Ruling on 2011 Board Vote

June 11, 2012

The U.S. National Labor Relations Board asked a federal judge to reconsider a ruling on the panel’s voting procedures, seeking to reinstate a measure that would allow for faster votes in union elections.

U.S. District Judge James Boasberg in Washington threw out the board’s rule change on union balloting May 14, saying the agency lacked a quorum when it approved the measure by the vote of two members.

The court’s finding that a third member of the board “did not ‘show up’ or participate” in the Dec. 16, 2011, vote “is predicated upon a mistaken understanding of the facts regarding the board’s electronic voting room,” the board said today in a court filing.

An electronic voting room mimics a meeting, the agency said. A user shows up by logging in and participates by reviewing and circulating documents and casting votes, the agency said in the filing. Board member Brian Hayes was present and participating and “it was clear error to ignore this and interpret his non-voting as absence rather than abstention,” the board said.

Hayes had already notified his two colleagues he would not be attaching a dissenting statement to the final rule and he would issue his dissent later,” the board said in the filing. Although he abstained from the vote, he wasn’t absent, the board said.

‘Clear Error’

The court should reconsider its decision “to correct a clear error, whether of law or of fact, and to prevent a manifest injustice,” the board argued in the filing.

The rule change, challenged by the U.S. Chamber of Commerce, simplified and shortened balloting at a time when the unionized share of the workforce is falling, according to labor relations consultant Phillip Wilson. The compressed schedule could have cut the time permitted for voting in half to as few as 15 days, Wilson said.

“Member Hayes’s deliberate decision not to cast such a vote does not deprive the board of a quorum,” the agency said.

Three members of the board are required to constitute a quorum, according to the filing.

The case is Chamber of Commerce of the U.S. v. National Labor Relations Board, 11-cv-02262, U.S. District Court, District of Columbia (Washington).

To contact the reporters on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net; Sara Forden in Washington at sforden@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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