Late yesterday, the National Labor Relations Board responded to the U.S. District Court’s decision to invalidate the ambush election rule by filing a motion to alter or amend the judgment of the Court. The Court invalidated the ambush election rule due to a lack of quorum – only two of the three sitting Board Members voted and procedurally, according to the Supreme Court decision in New Process Steel, the Board needs three voting members in order to finalize a rulemaking or issue a ruling in a case.
The NLRB is attempting to introduce new evidence by asserting Member Hayes had logged on to the Board’s electronic voting system the day of the vote on the ambush elections rule and as such, three members were present in the “electronic voting room.” The Board has asked the Court to reinstate the ambush elections rule pending a final judgment on the merits of the case.
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