By Jack Toner

As we advised in an earlier posting on May 14, the United States District Court for the District of Columbia ruled that the NLRB’s so called “Ambush Election” rule was invalid because it was not adopted by a proper quorum of the NLRB Members –a quorum requires three Members.  At the time the vote was taken on the rule, there were only three Members, and the Court found that one of the Members did not participate in the vote.  Consequently, the Court determined that the rule was not validly issued.  As a result, the NLRB announced that it would temporarily suspend implementation of the rule while it considered its response to the Court’s decision.

 Importantly, the Court did not address the merits of the substantive challenges to the rule.  Indeed,  the Court stated that it “expresses no opinion …to [the] 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 NLRB has now responded to the Court’s ruling by filing a Motion for the Court to alter or amend its decision.  In its motion the NLRB argues that the Court’s decision “is predicated upon a mistaken understanding” of the NLRB’s voting procedures and that all three Members, a proper quorum, did participate in the vote to issue the rule.  

In support of its position the NLRB attached a detailed description of its internal voting procedures and records allegedly reflecting the participation of all three Members in the vote regarding issuance of the rule.  This information was not part of the record before the Court when it made its initial decision and, if accepted,  may provide sufficient basis for the Court to amend its order and find that a proper  quorum did participate in the vote on the rule.  If the Court does so, the NLRB has requested that the Court “promptly reinstate the Rule pending a final judgment.”   

There is no indication yet when a ruling on the NLRB’s motion is expected, but there is a distinct possibility that it may be sooner than many in the employer community would like, especially if granted.