NLRB Watch: NLRB’s “Ambush” Election Rule Invalidated… At Least for Now 

On May 14, 2012, the U.S. District Court for the District of Columbia declared invalid the National Labor Relations Board’s (NLRB) Representation Case Procedures Rule, better known as the “quickie election” or “ambush election” rule.

The Board had published the final Rule on December 22, 2011, to be effective April 30, 2012. However, the Court invalidated the Rule because the statutorily required quorum of three Board members did not participate in the adoption of the final Rule changing the procedures for union representation elections.

The Court did not address the Rule’s substance. The Court addressed only the fact that, when the Rule was adopted and published in the Federal Register, only two Board members actually participated in the decision to do so. Relying on the Supreme Court’s 2010 decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, which held that official Board actions require a quorum (or minimum) of three members, the District Court found the rule invalid because three members did not participate in the approval of the final Rule.

At the time the Board approved the rule, the Board had only three of a statutorily possible five members. Only Chairman Pearce and then Member Becker, both former union lawyers appointed by President Obama, approved the Rule. In an apparent attempt to rush the rule through, Member Hayes – the then sole Republican on the Board – was not even asked to vote on adoption of the final Rule.

The Rule shortened some time limits under the prior rule and eliminated various opportunities for parties to an election proceeding to raise objections, file briefs and motions, and introduce evidence for consideration by the Board prior to the scheduling and conduct of an election. The Board’s purported objective was to postpone until after an election such issues to reduce the time between the filing of an election petition and the election from the current 38 to 42 days to a period of 10-21 days. The reduced time would significantly limit the opportunities of employers and employees opposed to unionization to respond to union campaign messaging which often goes on for months or years, leave all employees less informed, and likely increase union election victories.

Moreover, postponement of questions of who is properly in a bargaining unit would force employees to vote on unionization without even knowing exactly who would be their fellow unit employees. (For a more detailed description of the ambush election rule click here.

For the time being, employees are relieved of the prospect of quickie elections. The court’s ruling leaves the current Board with limited options. Should the present three Democrat Board members, Chairman Pearce and Members Griffin and Block, attempt to reissue the rule, it will be challenged on the ground that three of the current Board members – Griffin, Block, and Flynn – were “recess” appointed in violation of the U.S. Constitution and U.S. Senate rules defining “recess” because the Senate actually was in session when those appointments were announced. And, should the Board choose to appeal the District Court’s decision, the ambush election rule would not be in effect while the appeal is pending.

Last NLRB Watch: "With 'Quickie Elections' Rule, NLRB Quick to Sell Out Workers"

Next NLRB Watch: "Divide and Conquer: NLRB now granting union officials compulsory unionism power over 'micro' units"


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