Federal Court Invalidates NLRB’s ‘Ambush Election’ Rule

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[authors: Mary Theresa Metzler and Kelly T. Kindig]

Finding that no quorum existed to allow the National Labor Relations Board to take administrative action, a federal judge in Washington, D.C., has struck down the NLRB’s attempt to change the way it handled elections in the past.

In the May 14, 2012, decision in Chamber of Commerce of the United States v. NLRB, the court invalidated the final rule issued by the National Labor Relations Board governing all representation case petitions.

The NLRB published the final rule—dubbed by some as the “ambush election rule”—late last year, with an effective date of April 30, 2012. The amended regulations made a number of changes to the NLRB’s pre-election procedures, including changes to the timing and procedures for conducting hearings and elections and the elimination of a party’s right to seek review of most pre-election rulings.

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (CDW) filed suit to challenge the rule on several grounds, lodging an argument that the NLRB lacked statutory authority to pass the rule.

The court sided with the Chamber and the CDW. The National Labor Relations Act requires that a quorum, consisting of three of the five NLRB members, exist for the Board to “do business,” as the court put it. When the NLRB first proposed amending the election rules, it had four members in office, who voted 3-1 in favor of issuing the proposed amendments. After the notice and public comment period, and while the NLRB was considering the amendments, then-Chairperson Wilma B. Liebman’s term ended, leaving just three Board members. The NLRB began its internal process for finalizing and publishing the final rule.

On December 16, 2011, pursuant to its internal procedures, two of the remaining members voted, through the NLRB’s electronic case management system, in favor of issuing the final rule. The third member, Brian E. Hayes, did not vote or take any other action that day to approve, reject, abstain, or otherwise provide input into the decision.

Quoting Woody Allen’s line that “eighty percent of life is just showing up,” U.S. District Judge James E. Boasberg held that Member Hayes did not even “show up” for this vote, with the result that no quorum was ever established. Although he invalidated the NLRB’s rule on administrative grounds, Judge Boasberg was careful to note that he was not passing on the merits of the rule and the NLRB’s changes to its election procedures.

In a statement issued May 15, the NLRB announced that, in light of the court’s ruling, it has temporarily suspended implementing its election procedures changes and rescinded previous guidance issued by Acting General Counsel Lafe Solomon. Although it has not yet taken any formal action, it is possible that the Board, which currently has five members, including 3 Democrats, could vote to re-issue the rule. Alternatively, the NLRB could appeal the court’s ruling. In the interim, elections will follow previous procedures.

For more information on the court’s recent decision and the impact it will have on the NLRB’s approach to election procedures, please contact Mary Theresa Metzler at 215.864.8242 or metzlerm@ballardspahr.com, Kelly T. Kindig at  215.864.8652 or kindigk@ballardspahr.com, or the member of Ballard Spahr’s Labor and Employment Group with whom you work.