D.C. Court Invalidates "Ambush Election" Rule

On May 14, 2012, in Chamber of Commerce et al v. NLRB, District Judge James E. Boasberg of the U.S. District Court for the District of Columbia enjoined the National Labor Relations Board’s (NLRB) representation case rules (commonly referred to as the “quickie election” or “ambush election” rules)  because of a lack of a quorum of three Members acting on the final rule. Citing the U.S. Supreme Court’s decision in New Process Steel, the court noted that: “At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle.”

The court also noted in granting plaintiffs’ motion for summary judgment:

According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying 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 that the challenged rule is invalid.

The court did not reach the plaintiffs’ challenge to the final rule on myriad grounds. Instead, the court reached only their first contention: that the rule was adopted without the statutorily required quorum. As the court observed:

In the end, the Court recognizes that its decision not to reach the merits here may be unsatisfying to the NLRB, as well as to the many employers and employees who are affected by the rule’s provisions. But to do so would degrade the quorum requirement from a fundamental constraint on the exercise of the Board’s power to an “easily surmounted technical obstacle[ ] of little to no import.” New Process Steel, 130 S. Ct. at 2644.

The court emphasized that its ruling need not necessarily spell the end of the final rule for all time.

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.

In addition to this development, on April 27, the Office of General Counsel of the NLRB issued a letter clarifying its understanding of the D.C. Circuit Court of Appeals’ April 17 decision enjoining the NLRB’s implementation of the notice posting rule. According to the letter, which clarifies that the Board will comply with the District Court of South Carolina’s judgment invalidating the notice posting rule, “the NLRB will honor the District Court of South Carolina’s judgment and not implement the Rule against any person unless and until that judgment is reversed upon appeal by the Fourth Circuit Court of Appeals or the Supreme Court of the United States.”

According to Harold P. Coxson, Jr., a shareholder in Ogletree Deakins’ Washington, D.C. office and a principal in Ogletree Governmental Affairs, Inc.: “Although this is not the last chapter in the litigation or the rule for that matter, it undoubtedly means that the Board cannot institute the new rules. Even if the Board is able to overcome the lack of quorum on its initial rulemaking, and to restore the provisions it dropped from the rule as originally proposed in its haste to promulgate the final rule, there will still be the substantive challenges that were not addressed. And, if the Board should choose to reenact the regulation, the new vote will include Members whose recess appointments are being challenged and that of course will result in another hurdle to the Board’s lack of a quorum, even before the challenges on the merits of the rule are addressed.”