Judge Strikes Down NLRB’s New Ambush Election Rule

May 16, 2012

On May 14, 2012, United States District Judge James Boasberg of the United States District Court for the District of Columbia struck down the National Labor Relations Board’s (NLRB) newly implemented regulations governing union elections. This new rule, commonly referred to as the “ambush” election rule, was published on Dec. 22, 2011, and took effect on April 30, 2012. Among other things, the new rule dramatically reduced the time between the filing of a representation petition and the actual election and significantly limited employer opportunities to challenge important determinations such as supervisor status before an election. (See our previous alert.) Yesterday, Judge Boasberg ruled that the NLRB did not have the requisite quorum when it adopted the new rule and that the new election rule, therefore, is invalid. For the time being, the court held that union elections must take place pursuant to the old rules.

The National Labor Relations Act (NLRA) requires that the NLRB have a quorum of at least three (3) NLRB members to conduct business. The United States Supreme Court recently addressed and affirmed this quorum requirement in its decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2638 (2010).

The NLRB voted to adopt the new “ambush” election rule in December 2011. (See our previous alert.) At that time, the NLRB only had three (3) members. Two members, Democratic Members Michael Pearce and Craig Becker, voted for the new rule. Remaining Member Brian Hayes, however, did not participate in the vote. Member Hayes had participated in early phases of the rulemaking process, but did not participate in the actual vote.

The U.S. Chamber of Commerce, among others, sued to invalidate the new rule on various grounds, including the lack of the requisite quorum. In his May 14, 2012, decision, Judge Boasberg held that the NLRB did not have the requisite quorum of three (3) members when voting to implement the new rule. In so doing, Judge Boasberg explained that “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.” Without the necessary quorum, the court held that the new rule was invalid.

Due the lack of a quorum, Judge Boasberg did not rule on other challenges to the new NLRB rule. Therefore, he “noted that nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.” We expect that the current NLRB again will try to implement the new rule. Then the other challenges to the rule will be heard in court. However, until a quorum of the NLRB votes on the “ambush” election rule and that rule takes effect, representation elections will continue under the old election procedures.