Federal Court Strikes Down Ambush Election Rule

May 14, 2012

Employers worried about being ambushed by speedier union elections are breathing a collective sigh of relief today, after a federal district court in Washington, DC struck down the National Labor Relations Board’s new “ambush” election rule. That rule, if implemented, would have led to speedier unions and made it easier for unions to gain members by depriving employers of the opportunity to rebut union propaganda.
Because only two members participated in the rulemaking vote, the Court found that the NLRB lacked a sufficient quorum to pass the rule and therefore did not have the authority to issue the new regulation.  According to Woody Allen, the judge wrote, eighty percent of life is just showing up – and the NLRB didn’t even get that part right. The court wrote:

Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough.  Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice.  He need not necessarily have voted, but he had to at least show up.  At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle.  Regardless of whether the final rule otherwise complies with the Constitution and the governing statute – let alone whether the amendments it contains are desirable from a policy perspective – the Board lacked the authority to issue it, and, therefore, it cannot stand.

The Chamber argued in its lawsuit that the rule was basically an attempt to circumvent through regulation a union election scheme that Congress has repeatedly rejected.  The Chamber has argued that the new rule would have made it significantly more difficult for employers, especially small employers, to respond to union campaigns by shortening the time period for union elections and thereby depriving employers of a fair opportunity to explain to employees the costs of unionization.
Since the court did not reach the merits of the case, it is possible that a “properly constituted quorum of the  Board” could vote to adopt the rule in the future.  It’s not entirely clear, however, whether the Board as constituted would have the authority to issue a new rule. The Chamber has moved to intervene in a separate lawsuit to clarify whether three of the five Board members were improperly “recess appointed,” and if so, whether the NLRB now lacks a quorum.
The ambush election case is Chamber of Commerce, et al. v. NLRB. You can find out more about the lawsuit at the website for the Chamber’s public policy law firm, the National Chamber Litigation Center, which is handling the case.

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