The NLRB’s agenda for bringing about massive change despite severe opposition continues to be stalled by legal challenges.  Last month, the Board’s employee rights poster notice rule was invalidated.  Now, a month later, a federal judge in the District of Columbia has ruled that the ambush election rules, which were adopted in December, and went into effect April 30, are invalid.  The ambush election rules were challenged by the United States Chamber of Commerce and the Coalition for a Democratic Workplace.  The decision can be found here: Chamber of Commerce, et al. v. NLRB (Decision).pdf  


The judge held the rules invalid due to the fact a quorum of three members was not present when they were adopted on December 16, 2011.  This is because Member Hayes did not participate in the actual final vote.  Member Hayes believed he did not have to take any further action on the rules because he already had expressed his opposition to them.    As Judge James Boasberg stated in his ruling:

According to Woody Allen, eighty percent of life is just showing up.  When it comes to a quorum requirement, though, showing up is even more important than that.  Indeed, it is the only thing that matters–even when the quorum is constituted electronically.  In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold the challenged rule is invalid.

The Court determined that Member Hayes’ inaction on the day of the vote could not count toward a quorum, particularly because the Board did not request he take action as is typical when a vote takes place.  

The judge stressed the narrowness of his decision, and seemed to issue a challenge to the new Board to vote on the rules:


The Court does not reach–and expresses no opinion on–Plaintiffs’ other procedural and substantive challenges to the rule, but it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful.  As a result, 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.  In the meantime, though, representation elections will have to continue under the old procedures.


Thus, the ambush election rules are invalidated, for now.  

The ruling is not the end of the matter, of course.  The judge expressly stated that he was not reaching the merits of the rules themselves.   So here are some considerations to look for in the future:


  • Will the current Board vote to adopt the rules?  The new Board members have been strangely quiet compared to their predecessors, and one doesn’t know whether the new group wants to continue down this path.
  • There is an issue with the new members as well.  There are some who believe the Members who were appointed in January 2012 were not appointed during a valid recess of Congress, which, if true, would mean these members do not have authority to vote on anything, let alone the ambush election rules.
  • Will there be appeals?  Most certainly.  If there is a new vote, then the actual rules themselves will have to be evaluated by a Court.  Which party appeals depends on whether another vote takes place.
  • What happens next?  While the judge says elections will have to continue under “old procedures” we will have to see what that means.

As always, we will keep you posted of developments.