A federal court for the District of Columbia ruled yesterday that the National Labor Relations Board’s (NLRB) new election rule is invalid. The court held that the NLRB did not properly adopt the controversial new rule, sometimes referred to as the “ambush election rule.”

The court found that the NLRB lacked the necessary quorum when it voted on the rule. Under federal law, a vote is valid if there is a quorum of at least three members voting on the rule. At the time the rule was adopted, the five-member board had three members, and only two of the three members voted on the rule. One member, Brian Hayes, expressed his opposition in a public hearing but did not actually participate in the vote. 

In response to the court’s decision, the NLRB announced that it suspended the implementation of the new rule and elections will proceed under the old rule.

According to the NLRB, about 150 election petitions were filed under the new rule. Many of those petitions resulted in election agreements and several have gone to hearing. The NLRB will contact all parties involved in the 150 cases and “provide them the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.” 

The NLRB may choose to hold a new vote on the election rule. As the court said, “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 2011, the NLRB proposed major changes to the procedures it follows before and after conducting a secret ballot election to determine if employees wish to be represented for purposes of collective bargaining. The rule expedited the representation and election process. The NLRB adopted the proposed changes and the final rule went into effect on April 30, 2012. 

The Chamber of Commerce of the United States of America and the Coalition for a Democratic Workplace filed the lawsuit challenging the now invalid rule.

Author: Gail Cecchettini Whaley

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