Court Strikes Down NLRB’s Ambush Election Rule on Technical Glitch

A technical glitch provided the basis for Washington, D.C.’s U.S. District Court to strike down the National Labor Relations Board’s rule allowing “ambush” elections.

Under the rule, which went into effect on April 30, union elections were allowed to take place in 14 days or less. Many argued that the expedited election rule denied employers “adequate time” to address employees regarding claims made by an organizing union—including senior housing trade group the Assisted Living Federation of America (ALFA). However, because the NLRB didn’t have the minimum number of members present while finalizing the rule, it is no longer in effect.

“According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that,” begins the memorandum for the court decision. “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 that the challenged rule is invalid.”


The Chamber of Commerce of the United States of America and the Coalition for a Democratic Workforce had challenged the NLRB rule on a number of grounds, but the Court reached its decision on the basis that the labor group adopted the rule without a statutorily-required quorum. The NLRB needed at least three members present in order to act, but only two board members participated in the rule adoption decision. 

“ALFA commends the Court for its decision today which will protect employees and employers alike from ambush style union elections,” said ALFA President and CEO Richard P. Grimes in a statement. “The NLRB should take the Court’s decision to heart and adopt a more balanced approach going forward rather than one favoring the agenda of organized labor.”

The labor board contends all three board members did in fact participate in the rulemaking, thus satisfying the quorum. However, the Court determined that the third member of the board, Brian Hayes (who didn’t cast a vote) can’t be counted toward the quorum “merely because he held office.” While he didn’t need to vote, he did have to at least show up. 
“At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle,” says the memorandum. “Regardless of whether the final rule otherwise complies with the Constitution and the governing statute—let alone whether the amendments it contains are desirable from a policy perspective—the Board lacked the authority to issue it, and, therefore, it cannot stand.”
Read the full Memorandum Opinion

Written by Alyssa Gerace


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