By Nicholas R. Clements

Earlier today, the United States District Court for the District of Columbia ruled that the so-called “Ambush Election” rule promulgated by the National Labor Relations Board (“NLRB”) is invalid.   (For reference, see our prior blog post on the “Ambush Election” rule here for additional detail on the rule.)

The Chamber of Commerce of the United States of America and the Coalition for a Democratic Workplace filed suit challenging the rule.  Among other things, the plaintiffs asked for a declaration that the rule was contrary to the National Labor Relations Act and the First and Fifth Amendments to the Constitution, and that it violated the Administrative Procedures Act and the Regulatory Flexibility Act.

The Court, however, did not get to the merits of plaintiffs’ charges.  Instead, it held that the NLRB lacked the authority to issue the rule because it was not, as required, adopted by a quorum of the NLRB Members.  At the time the rule was adopted, there were only three Members out of a possible five.  As specified in the National Labor Relations Act, “three members of the Board shall, at all times, constitute a quorum.”

Although two of the three NLRB Members at the time voted for the new rule via the NLRB’s electronic voting procedures, the third Member, Brian Hayes, did not vote, nor was his presence verified at the “meeting” at which the voting took place.  In fact, the Court notes, when no vote or other response was received from Member Hayes, “no one requested that he provide one, per the agency’s usual practice.” 

The NLRB was in reality not able to establish that Member Hayes even received notice of the vote.  The Court concluded that this was the equivalent of the third Member’s failure to attend a meeting, thereby depriving the NLRB of the required three-Member quorum.  Although all three Members “need not necessarily have voted,” they all had to have showed up.  According to the Court “two is simply not enough.”  Thus, the Court held that the resulting “Ambush Election” rule was not validly promulgated. 

The Court’s conclusion that the rule was not validly promulgated may not forestall the implementation of the rule at a later point, however.  The Court explicitly stated that it “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 legal.”

The upshot for employers is that while the “Ambush Election” rule is not effective, “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.”