The NLRB's agenda for bringing about massive change despite severe opposition continues to be stalled by legal challenges. Last month, the Board's employee rights poster notice rule was invalidated. Now, a month later, a federal judge in the District of Columbia has ruled that the ambush election rules, which were adopted in December, and went into effect April 30, are invalid. The ambush election rules were challenged by the United States Chamber of Commerce and the Coalition for a Democratic Workplace in the United States District Court for the District of Columbia, Chamber of Commerce, et al. v. NLRB, Civil Action No. 11-2262 (JEB).On May 14, the ruled that the rules were invalid because they were not issued by a valid quorum of the NLRB. Specifically, the court held a Board quorum of three members was not present when the rules were adopted on December 16, 2011, because Member Hayes did not participate in the actual final vote. As Judge James Boasberg stated in his ruling:

"According to Woody Allen, eighty percent of life is just showing up. When it comes to a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters--even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold the challenged rule is invalid."

Member Hayes, through an affidavit filed with the court, indicated that he believed he did not have to take any further action on the rules because he already had expressed his opposition to them. The court determined that Member Hayes' inaction on the day of the vote could not count toward a quorum. Member Hayes neither voted, nor did he affirmatively abstain from voting, on the adoption of the final rules. Nor did the Executive Secretary of the Board request he take action, as is typical when only one member has not acted. Partly this is because the final vote was taken electronically and over the period of only a few hours. 

The judge stressed the narrowness of his decision, and seemed to issue a challenge to the new Board to vote on the rules:

"The Court does not reach--and 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 lawful. As a result, 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. In the meantime, though, representation elections will have to continue under the old procedures."

Thus, the ambush election rules are invalidated, for now. But it is highly unlikely that this ruling will end the matter. For now, the NLRB has announced that it is suspending implementation of the changes made by the new rules, and the Acting General Counsel has recalled the guidance he issued to the NLRB’s regional offices on April 26.

The judge expressly stated that he was not reaching the merits of the rules themselves. So here are some considerations to look for in the future:

• Will the current Board vote to adopt the rules? The new Board members have been strangely quiet compared to their predecessors, and one doesn't know whether the new group wants to continue down this path. Only two of the current five members were even on the Board when the rules were proposed, two days of hearings were held and over 65,000 comments received. 
• There is a quorum issue with the new members as well. Many believe the members who were appointed by the President in January 2012, were not appointed during a valid recess of Senate. If this is correct, then it would mean the current Board lacks the necessary three member quorum to take any action in any matter, let alone the election rules.
• Will there be appeals? Almost certainly. The Board has little to lose and much to gain in an appeal. If it were to win, the rules would be in place – if it were to lose, then the Board would have to re-vote to promulgate, with the attendant legal risks. It is possible, of course, that the Board will do both, although it is unclear whether that might render an appeal moot.

As always, we will keep you posted of developments, via both client alerts and on our labor blog, laborrelationsupdate.com.