Lamson, Dugan and Murray, LLP, Attorneys at Law

Ambush Elections? Not yet.

Posted in NLRA

On May 14, 2012, the United States District Court for the District of Columbia ruled that the National Labor Relations Board lacked a quorum to adopt the “ambush election” rule. While the current NLRB board may adopt its own “ambush election” rule, the current ambush election rule is now stayed.

As you may recall, back in July, the board had four members when it held hearings about the ambush election rule. In the fall, one of the board member’s term expired, leaving the board with only three members. Last November, the remaining three members considered a resolution intended to allow for an expedited election amendments to the rules. This resolution passed by vote of two to one, with Member Hayes dissenting.

The ambush election rule was finalized in December and members were asked to electronically vote. Only two of the three members of the board voted, both in favor of the ambush election rule. Member Hayes did not vote, either for or against the rule. Interestingly, Member Hayes testified that he did not vote because he did not think any action was necessary on his part. The NLRB then decided that Member Hayes had voted against the proposed rule and concluded that the ambush election rule passed with 2-1 vote.

Once the rule went into effect, the Chamber of Commerce of the United States of America and the Coalition for Democratic Workforce filed suit challenging the rule. While the parties made any number of arguments for and against the rule, the Court only focused on whether member Hayes’ refusal to participate in the vote precluded a quorum. Ultimately, the Court held that Member Hayes’ refusal to participate in the vote meant that the required three person quorum was not met. The Court equated Member Hayes’ lack of a vote akin to not showing up to a meeting in which a vote would be held.

It will be interesting to follow the impact of the Court’s decision. This may provide an opportunity for one member of the three member board to do more than dissent, but prevent action from being taken at all. This ruling may also incentivize the President to appoint additional members to the NLRB.

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