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U.S. Court invalidates NLRB election 'ambush' rule

U.S. Court invalidates NLRB election 'ambush' rule



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Association executives applauded a U.S. District Court Judge for invalidating a National Labor Relations Board regulation that would have accelerated the time frame allowed for union elections.

Judge James Boasberg said the NLRB at the time of the vote did not have a necessary quorum to approve the rule change. He said two commissioners voted to approve the regulation when at least three members were necessary to form a quorum.

“According to Woody Allen, 80 percent of life is just showing up,” wrote Boasberg in his opinion in U.S. Chamber of Commerce and Coalition for a Democratic Workplace v. National Labor Relations Board. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters ... In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.”

The judge’s ruling follows a setback for the industry last month when the U.S. Senate failed to pass a resolution seeking to overturn the new regulation — called “ambush” elections by many business groups.

The rule, which was scheduled to take effect April 30, would have sped up union elections from an average of 38 days after a petition to unionize is filed to as few as 10 days. Opponents had argued that the NLRB had overstepped its authority by passing the rule.

“The restaurant industry, the nation’s second-largest private sector employer and an industry comprised mostly of small businesses, is pleased that another shot-gun regulation, and one of our top targets for repeal, has been invalidated by the courts,” said Angelo Amador, vice president of Labor and Workforce Policy for the National Restaurant Association.

“Last month, over three thousand members contacted their Senators seeking legislative relief from this regulation, which failed on the Senate floor on a party line vote,” Amador said. “We are pleased that yesterday’s ruling makes legislative relief unnecessary."

Steve Caldeira, president and chief executive of the International Franchise Association, said: “The ‘ambush’ election rule was the board's attempt to placate organized labor by effectively denying employees' access to critical information about unions and stripping employers of free speech and due process rights. Today's ruling is a win for employers and employees, given the threat it posed by limiting employees’ opportunity to hear from employers and make an informed choice as well as diminishing employers' due process."

Caldeira went on to say that the IFA “will continue to work with its partners at CDW [Coalition for a Democratic Workplace] and the U.S. Chamber to rein in the NLRB’s assault on free enterprise, which places a great deal of uncertainty on franchise small business owners and their employees.”

David French, senior vice president of the NRF, the parent association of the National Council of Chain Restaurant, said: "NRF is very pleased with the decision to throw out the ambush election rule at NLRB.

“In their rush to conclude their rulemaking … the board took shortcuts in the process, and the court rightly ruled that the rule is invalid because the board lacked the necessary quorum to conduct business.”

However, while opponents of the regulation see this as a victory, some experts are calling the reversal a “technicality,” and maintain that the NLRB could reintroduce the rule to a quorum and potentially pass it once again.

Proponents of the NLRB’s rule change argue that it would streamline the union election process by reducing “unnecessary” delays in the elections.

Contact Paul Frumkin at [email protected]


Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid. Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.

When the final rule was approved last December, Member Hayes (R) did not vote on it. Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule. While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view. Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. The judge held that elections must continue to be conducted under the old rules. The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again. The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules. The NLRB now has a full five members, although there is controversy surrounding those appointments. Another vote on the rule will present an opportunity to challenge the appointments in court. Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule. It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor. The NLRB may announce its position on the decision soon. If so, the NLRB’s position will be covered in this blog.


Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid. Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.

When the final rule was approved last December, Member Hayes (R) did not vote on it. Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule. While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view. Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. The judge held that elections must continue to be conducted under the old rules. The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again. The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules. The NLRB now has a full five members, although there is controversy surrounding those appointments. Another vote on the rule will present an opportunity to challenge the appointments in court. Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule. It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor. The NLRB may announce its position on the decision soon. If so, the NLRB’s position will be covered in this blog.


Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid. Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.

When the final rule was approved last December, Member Hayes (R) did not vote on it. Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule. While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view. Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. The judge held that elections must continue to be conducted under the old rules. The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again. The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules. The NLRB now has a full five members, although there is controversy surrounding those appointments. Another vote on the rule will present an opportunity to challenge the appointments in court. Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule. It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor. The NLRB may announce its position on the decision soon. If so, the NLRB’s position will be covered in this blog.


Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid. Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.

When the final rule was approved last December, Member Hayes (R) did not vote on it. Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule. While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view. Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. The judge held that elections must continue to be conducted under the old rules. The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again. The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules. The NLRB now has a full five members, although there is controversy surrounding those appointments. Another vote on the rule will present an opportunity to challenge the appointments in court. Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule. It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor. The NLRB may announce its position on the decision soon. If so, the NLRB’s position will be covered in this blog.


Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid. Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.

When the final rule was approved last December, Member Hayes (R) did not vote on it. Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule. While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view. Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. The judge held that elections must continue to be conducted under the old rules. The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again. The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules. The NLRB now has a full five members, although there is controversy surrounding those appointments. Another vote on the rule will present an opportunity to challenge the appointments in court. Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule. It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor. The NLRB may announce its position on the decision soon. If so, the NLRB’s position will be covered in this blog.


Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid. Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.

When the final rule was approved last December, Member Hayes (R) did not vote on it. Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule. While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view. Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. The judge held that elections must continue to be conducted under the old rules. The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again. The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules. The NLRB now has a full five members, although there is controversy surrounding those appointments. Another vote on the rule will present an opportunity to challenge the appointments in court. Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule. It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor. The NLRB may announce its position on the decision soon. If so, the NLRB’s position will be covered in this blog.


Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid. Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.

When the final rule was approved last December, Member Hayes (R) did not vote on it. Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule. While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view. Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. The judge held that elections must continue to be conducted under the old rules. The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again. The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules. The NLRB now has a full five members, although there is controversy surrounding those appointments. Another vote on the rule will present an opportunity to challenge the appointments in court. Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule. It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor. The NLRB may announce its position on the decision soon. If so, the NLRB’s position will be covered in this blog.


Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid. Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.

When the final rule was approved last December, Member Hayes (R) did not vote on it. Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule. While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view. Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. The judge held that elections must continue to be conducted under the old rules. The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again. The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules. The NLRB now has a full five members, although there is controversy surrounding those appointments. Another vote on the rule will present an opportunity to challenge the appointments in court. Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule. It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor. The NLRB may announce its position on the decision soon. If so, the NLRB’s position will be covered in this blog.


Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid. Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.

When the final rule was approved last December, Member Hayes (R) did not vote on it. Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule. While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view. Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. The judge held that elections must continue to be conducted under the old rules. The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again. The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules. The NLRB now has a full five members, although there is controversy surrounding those appointments. Another vote on the rule will present an opportunity to challenge the appointments in court. Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule. It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor. The NLRB may announce its position on the decision soon. If so, the NLRB’s position will be covered in this blog.


Federal Judge Invalidates NLRB Election Rule

Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB’s election rule invalid. Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.

When the final rule was approved last December, Member Hayes (R) did not vote on it. Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule. While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court’s view. Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace. The judge held that elections must continue to be conducted under the old rules. The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again. The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court’s ruling may ultimately just delay the adoption of new election rules. The NLRB now has a full five members, although there is controversy surrounding those appointments. Another vote on the rule will present an opportunity to challenge the appointments in court. Judge Boasberg’s decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court’s decision, then, likely removes the immediate concern employers had with the adoption of the election rule. It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor. The NLRB may announce its position on the decision soon. If so, the NLRB’s position will be covered in this blog.


Watch the video: NLRB Ambush Election Rule Will Hurt Small Business (August 2022).