Déjà Vu? Court Rules Against "Ambush Election" Rule Again
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Hold on – you’re about to feel like you’re experiencing déjà vu. On Friday, a federal district judge ruled – again – that the NLRB’s “ambush” election rule is invalid because the NLRB lacked a quorum when it “adopted” the rule. The Chamber sued the NLRB last December to challenge the legality of the rule which, if left to stand, would have led to speedier union elections and made it easier for unions to gain members by depriving employers of the opportunity to rebut union propaganda.
If this all sounds vaguely familiar, it’s because the same federal court ruled on May 17 that the same rule was invalid because it was adopted without a quorum. According to the court in that decision, because only two members participated in the rulemaking vote, the court found that the NLRB lacked a sufficient quorum to pass the rule and therefore did not have the authority to issue the new regulation.
The NLRB attempted to convince the court to reconsider (or “amend”) its May 17 judgment based on what the agency claimed was "new evidence" that a third board member, Bryan Hayes, was “present” in the NLRB’s “electronic voting room” when the rule was adopted, and had merely “abstained” from voting.
Except… the new so-called “evidence” turned out not to be particularly relevant to the fundamental question of whether Hayes was present for the vote. The court’s opinion catalogues the myriad defects in the NLRB’s argument. First, the “evidence” merely showed that Hayes participated in other votes the same day – the NLRB did not show that the board member had “been present for this vote [the ambush election vote] to be counted toward this quorum.” So far as the ambush election vote was concerned, the NLRB only showed that one of Hayes’s employees, not Hayes himself, logged in to the “electronic voting room” to look at the ambush election voting task. Third, the court said that the NLRB’s “consistent position” had been that the final rule was sent for publication in the federal register as soon as the majority voted in favor of the rule – in other words, the court explained, the rule may have been sent for publication “32 minutes before Hayes’s staff ‘opened’ the task” in the electronic voting room.
And besides, the court said, there was no reason why the NLRB couldn’t have presented this “evidence” earlier in the litigation. Indeed, the court explained, the ambush election rule itself lacked any support for the NRLB’s claim that Hayes was present for but merely abstained from voting. The NLRB was basically asking the court for a second bite at the apple to make its case, and couldn’t provide a sufficient justification for doing so.
This summary of the court’s ruling is all very legalese-sounding but the big takeaway for employers is this: the ambush election rule is still invalid, and the NLRB’s agreement not to try to enforce the rule against employers is still in effect.
To learn more about the lawsuit, check out the website of the National Chamber Litigation Center, the Chamber’s public policy law firm, which represents the Chamber in its lawsuit against the NLRB.