NLRB Unsuccessfully Challenges Court’s Invalidation of “Ambush Election Rule”

As many employers may recall, the Chamber of Commerce of the United States of America (“Chamber”) filed suit against the National Labor Relations Board (“NLRB”) earlier this year in an effort to invalidate the “ambush election rule.” Essentially, the Chamber sought to invalidate the rule which it claimed would make responding to union campaigns more difficult for employers. The Chamber argued that the rule imposes drastic changes to the procedures for conducting workplace elections, which in turn deprives employers of a fair opportunity to explain the consequences of unionizing to its employees.

The basis for the request for relief was simple: the rule was issued without the statutorily-mandated quorum in that only two of the board members made the decision. Under New Process Steel v. NLRB, the NLRB must have a quorum of three members in order to issue new rules.

The U.S. District Court for the District of Columbia agreed with the Chamber, and struck down the rule. Recently, however, the NLRB sought to amend the Court's ruling based upon further argument and evidence. In Chamber of Commerce of the United States of America v. National Labor Relations Board, No, 11-2262 (July 27, 2012), the Court declined to amend the judgment, reasoning that the arguments made were already previously presented to and ruled upon by the Court, and that despite proffering new evidence, there was no explanation as to why the NLRB failed to present the evidence previously, nor did the NLRB demonstrate that the Court’s finding was “clear error.”

The “ambush election rule” remains invalidated for the time being. Despite the invalidation of the rule, employers should ensure familiarity with election rules and have an understanding of employee and employer rights and responsibilities during the process.