"Ambush Election" Rule Set Aside as Lacking Board Quorum - What Does This Mean for Union Representation Elections?
Late last year, the National Labor Relations Board (NLRB) attempted to adopt a new, final rule governing union representation elections. The rule, designed to dramatically speed up union representative elections by, among other things, combining pre- and post-election appeals, truncating pre- and post-election hearing procedures, and limiting the types of issues that employers could raise at pre-election hearings, was highly controversial and vigorously opposed during the rulemaking process by employers, who derisively deemed the rule the "Ambush Election" Rule. Despite fervent opposition, the Rule went into effect on April 30, 2012 . . . or so we all thought.
Prior to the Rule going into effect, it was challenged in court on various procedural and substantive grounds by a number of employers and trade groups. Yesterday, in Chamber of Commerce of the United States of America, et al. v. National Labor Relations Board, No. 1:11-cv-02262-JEB (D.D.C. May 14, 2012), the U.S. District Court for the District of Columbia issued a decision setting aside the Rule, finding it was promulgated by the Board without the quorum required by the National Labor Relations Act (NLRA), as only two members voted for it and participated in the final decision to enact the Rule.
What does this decision mean for employers? Importantly, the decision does not mean that the Rule is gone for good. The decision did not address the merits of the Rule at all, and was limited strictly to the technical issue of the lack of a Board quorum in enacting the Rule. It is likely that the NLRB will seek to re-promulgate the Rule (presumably this time with the proper quorum) as soon as possible. Of course, the same parties that challenged the Rule before will then do so again. Plus, it is also likely that the decision from yesterday will be appealed. So, the Rule is likely to be back, and at some later point a Court will have to issue a decision addressing the merits of the Rule and the challenges to it brought by employers.
In the meantime, employers have a brief reprieve during which the existing election rules continue to apply. Employers can use that time to further consider how they will address accelerated union representation elections once the ambush election rules (likely) appear again.
For questions about this decision or how it affects your business, please contact Seth Ford, Christina Bost Seaton, Evan Pontz or another member of Troutman Sanders LLP’s Labor and Employment Group.
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