Late yesterday, May 14, 2012, the United States District Court for the District of Columbia struck down the highly controversial “Ambush Election Rules” enacted by the National Labor Relations Board (NLRB) on December 16, 2011 and which went into effect only 2 weeks ago, on April 30, 2012. The “Ambush Election Rules” placed employers at an extreme disadvantage in union elections by, among other things, reducing the time between when a union petitions for an election and when the election is held to as little as a scant 10 days. This made it impracticable if not impossible for an employer to mount any semblance of a campaign, let alone a successful campaign, to counter the union’s likely already established majority support. The likely result of these “Ambush Election Rules” would have been to drastically increase the success rate of unions in NLRB elections. 

The Chamber of Commerce of the United States and the Coalition for a Democratic Workplace (CDW) sued the NLRB claiming that the NLRB lacked authority to issue these rules. The Chamber and the CDW made several different arguments as to why the NLRB lacked authority to issue the rules. In its Decision and Order (attached), the United States District Court for the District of Columbia addressed only one of these arguments. The Court concluded that the NLRB lacked the authority to issue these rules because the final vote to approve and issue the rules, on December 16, 2011, was conducted without the statutorily required three member quorum and thus, the act was an “invalid”. 

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. 

Chamber of Commerce of the United States of America, et al v. National Labor Relations Board, CV No. 11-2262 (Boasberg, J.)  

Today, in response to the Court’s Decision and Order, the NLRB announced that it has “suspended” implementation of the new election rules. In the same announcement, the NLRB noted that in the mere 11 days during which the new election rules were in effect, over 150 petitions for election were filed by unions. 

Unfortunately, for employers, the Court’s Decision and Order is in no way the death knell for the “Ambush Election Rules”. The NLRB now has a full five member board.  Thus, the NLRB can again call for a vote to enact the “Ambush Election Rules”. And this time, the NLRB very likely will make sure that it has a quorum. 

We will keep you informed as this matter continues to develop.