NLRB’s Ambush Election Rule Declared Void by D.C. District Court
Judge James E. Boasberg of the U.S. District Court for the District of Columbia issued an order on May 14, 2012, declaring the National Labor Relations Board’s so-called “ambush” election rule invalid. Late last year, the NLRB promulgated the rule, which limited the rights of management to challenge certification petitions and would likely reduce the period between the filing of a petition and the election. The rule became effective April 30, 2012, after Judge Boasberg refused a motion to enjoin the rule brought by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. However, Judge Boasberg’s denial of that motion did not end the lawsuit, which sought an order declaring the rule invalid. Judge Boasberg decision yesterday did just that.
Although the Chamber and Coalition challenged the Rule on a number of grounds, Judge Boasberg’s decision focused on just one – that ”the final rule was adopted without the required statutory quorum.” In lay terms, because only two members of the Board voted on the final rule and Member Hayes did not vote on the final rule, there was no quorum (at least three members per Section 3(b) of the Act) and the Board could not, therefore, lawfully approve the final rule. In response to the decision, the NLRB temporarily suspended implementation of the rule, and Acting General Counsel Lafe Solomon directed regional offices across the country to immediately resume processing representation petitions under the old rule.
Takeaways: Judge Boasberg’s decision leaves those employers with petitions filed between April 30th and May 15th (about 150) with an interesting decision. According to a press release issued today by the NLRB, those employers will be given the decision to re-initiate the case under the old rule or go forward with the cases as currently postured. While the decision yesterday will set back implementation of the “ambush rule” for the time being, employers can be sure that the NLRB will continue to push for implementation of expedited election procedures in coming months. In the meantime, employers should continue to be proactive when it comes to union avoidance. The key to union avoidance is making certain that employees feel informed, respected, and valued. Well trained supervisors are essential to creating positive employee relations, and employers should be working now to ensure that their supervisors are trained to be aware of union issues and to respond appropriately.