Obama NLRB's Ambush Election Rules Smacked Down By Circuit Court...For Now

overturned by the District Court for the District of Columbia.

In December, the Obama NLRB promulgated new rules (which went into effect on April 30th) that eviscerated an employer’s right to challenge a union’s petition to hold an election on unionizing select groups of employees (called units). This evisceration opened the door for union elections to take place in as little as 17 days from petition filing—down considerably from the NLRB’s median time frame of 38 days.


In its Monday ruling, the District Court cited Woody Allen as it ruled that the NLRB’s December promulgation did not have the required quorum:

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. 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 challenge to the rule was brought by the Coalition for a Democratic Workplace and its litigation partners at the U.S. Chamber of Commerce.

In a statement, CDW chairman Geoffrey Burr stated:

“Employers are greatly gratified that the Court has overturned a rule that would have been bad for employees and employers and especially hard on small business owners who would have been left with mere days to navigate an often-arcane NLRB process.”

While the Court’s ruling is certainly welcome news for union-free employers and employees alike, it does not mean the issue is dead.

Since the Court’s overturning of the NLRB’s rules were based on the fact that the Board did not have a quorum, the question now becomes: Will the constitutionally-questionable recess appointments Barack Obama made to the NLRB in January have the legal standing to simply re-impose the ambush election rules?


As the attorneys at Labor Relations Today wrote yesterday:

This decision foreshadows the coming showdown over President Obama’s January 2012 “recess” appointments.  Judge Boasberg’s decision strongly suggests that if there is an interest in a fully functional National Labor Relations Board, there must be a fully seated Board — or at least a full quorum of three like-minded Members who will participate in actions.

Renowned labor attorney Michael J. Lotito of the law firm Littler Mendelson summarized the Monday ruling this way:  “This is not over by a long shot but this was a nice win.”

Related: NLRB Can Revive Speedy Union Vote Rule Judge Threw Out


“Truth isn’t mean. It’s truth.”
Andrew Breitbart (1969-2012)

Cross-posted on LaborUnionReport.com

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