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Court Strikes Down NLRB “Ambush” Election Rule

Published by on May 21, 2012

The United States District Court for the District of Columbia has enjoined the National Labor Relations Board (“NLRB”) from enforcing its new “ambush” or “quickie” representative election rule, which went into effect April 30, 2012.  More after the break. The district court in Chamber of Commerce et al. v. NLRB, held that the new rule […]

The United States District Court for the District of Columbia has enjoined the National Labor Relations Board (“NLRB”) from enforcing its new “ambush” or “quickie” representative election rule, which went into effect April 30, 2012.  More after the break.

The district court in Chamber of Commerce et al. v. NLRB, held that the new rule was invalid because the NLRB was required to have at least three members present for a quorum to take action regarding a rule and the NLRB only had two members present when it voted on the final rule in December, 2011.  As a result, representative elections will continue under the NLRB’s old procedures.    

The NLRB’s enjoined “ambush” representation election rule limited the subjects that could be raised in a pre-election hearing and postponed election-related appeals to the NLRB until after the election.  This new election rule effectively reduced the time between filing a petition for unionization and the subsequent election from the median time frame of 38 days to as little as 10 days, which provide employers far less time to respond to an organizing drive before an unionization election.  The district court held the election rule was invalid on procedural grounds and did not reach the other legal challenges to the rule.  Accordingly, the district court opinion stated “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.”     

The NLRB has issued a press release on the district court’s ruling, announcing it is temporarily suspending the implementation of changes to its representation election process.

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