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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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Issues After The Election
