Delivering for Best-in-Class Wholesaler-Distributors
May 2012

On May 14, 2012, the federal district court for the District of Columbia struck down the NLRB “ambush election” rule because a quorum did not exist when the Board’s members voted via email on the final rule. (Chamber of Commerce of the United States and Coalition for a Democratic Workplace v. National Labor Relations Board, No. 11-2262). NAW helps manage the Coalition for a Democratic Workplace.

A quorum is the minimum number of members of a deliberative body who must be present to transact business. In his ruling, Judge James E. Boasberg noted that the court did not reach the other procedural and substantive challenges to the rule raised by the business groups and the ruling “need not spell the end of the final rule for all time.”

By statute, a quorum for most NLRB decisions is at least three members. The Board conducted a vote on the final rule via an email ballot sent on December 16, 2011 to the three sitting board members and gave them “a matter of hours” to respond. The court cited a 2010 U. S. Supreme Court decision that the NLRB may legally transact business only when at least three of its members are “participating” in a decision. While two members responded via email with affirmative votes approving the final rule, the third member, Brian Hayes, did not respond to the email.

The court ruled that Mr. Hayes did not “participate” in the decision; therefore, the required three member quorum was lacking. Had Mr. Hayes voted against the rule, or registered his abstention, he would have been counted toward the quorum, according to the court.

The ambush election rule did go into effect on April 30, 2012, as NAW advised in an earlier member alert (see: The NLRB is now fully staffed with five members (including three members whose so-called “recess” appointments by the President on January 4, 2012 are being challenged in a separate court action on Constitutional grounds). But absent further court order, the court’s opinion states that union “representation elections will have to continue under the old procedures.”

The NLRB must now decide whether to appeal Judge Boasberg’s ruling, and/or attempt to take another vote on its ambush election rule.

Should they decide to vote again on the rule immediately, the three new recess appointees would be voting without having participated in the public comment period on the original rule and without having reviewed the 65,000 public comments submitted during that process. An immediate vote would therefore raise significant new legal questions of proper rulemaking procedure.

More significant, a re-vote would certainly draw an additional legal challenge in this case that the Presidential appointment of the three new board members was unconstitutional and void – which if successful would leave the NLRB with only two lawfully appointed members – shy of the three-member quorum to act.

The court’s opinion can be viewed at: