Last week, the National Labor Relations Board (NLRB) formally withdrew the regulations it issued in late 2011 that would have dramatically changed the process for representation case petitions and pre-election procedures. Sometimes referred to as the “ambush election rules,” the regulations would have, among other things, reduced the amount of time between the filing of a representation petition and an election. The withdrawal does not mean that the NLRB has abandoned this regulatory effort, however; in fact, it has hinted that it may revisit the idea.
A federal district court struck down the regulations on procedural grounds in May 2012, finding that the NLRB lacked the quorum required for it to properly take administrative action. The NLRB appealed to the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit placed the case in abeyance in light of its previous decision in Noel Canning v. NLRB, which held that the recess appointments of three members to the NLRB violated the U.S. Constitution. Noel Canning is currently on appeal to the Supreme Court of the United States.
The NLRB voluntarily dismissed its appeal of the ambush election rules in December 2013, leading to their formal withdrawal last week. This announcement comes on the heels of the NLRB’s abandonment of its controversial poster rule, which would have required most private sector employers to post a notice to employees of their rights under the National Labor Relations Act.
Nevertheless, the ambush election rules may appear again in either their previous form or some new incarnation. In its most recent regulatory agenda published a few weeks before the dismissal of the appeal, the NLRB—now properly constituted—focused on its plan to “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation” by amending its existing regulations.