Employers can breathe a sigh of relief after District Court Judge James Boasberg's decision not to amend his previous decision which invalidated the NLRB's "ambush" election rules. Chamber of Commerce of the United States of America v. NLRB, No. 11-2262 (July 27, 2012 D.C.D.C).
On May 14, 2012, the Court issued an opinion finding the ambush election rules invalid because the Board did not have three members who cast a vote on whether to implement the rules when they were adopted in December 2011. Because the NLRB conducted the vote electronically and Member Hayes simply took no action in response to the notice calling for the vote, Judge Boasberg found that Member Hayes had not abstained, and the Board lacked sufficient quorum to adopt the final ambush election rules.
On July 27, 2012, the Court denied the NLRB's motion to alter or amend its previous decision to invalidate the controversial election rules. Specifically, Judge Boasberg refused the invitation for "rehashing arguments" and found that, although the NLRB offered more compelling evidence than the first go-around, it was ultimately not persuasive enough to alter or amend his decision. "In the end, the NLRB has offered too little too late" the judge found, noting however that "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."
This decision is good news for employers who have been operating in fear of a quickie election without sufficient time to campaign against unionization. Although it is unclear whether the NLRB will proceed further through the appellate process on this issue, employers may operate under the traditional election rules for the time being.
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