U.S. Chamber urges federal appeals court to invalidate NLRB's "Ambush Election Rule" in light of unconstitutional recess appointments
The U.S. Chamber has urged the U.S. Court of Appeals for the D.C. Circuit to uphold a decision of the U.S. District Court for the District of Columbia that ruled that the Ambush Election Rule is invalid "because no quorum ever existed for the pivotal vote in question." In addition to the D.C. District Court's ruling that Member Brian Hayes did not participate in the vote, depriving the Board of a quorum, the U.S. Chamber subsequently filed a 28(j) letter with the D.C. Circuit arguing that under the court's recent decision in Noel Canning v. NLRB, the recess appointment of Member Craig Becker was invalid, and therefore, the Board would not have had a lawful quorum to promulgate the rule even if Member Hayes had participated in the vote.
The Ambush Election Rule, if left to stand, would lead to ‘drive-by’ accelerated union elections, which would deprive employers of the opportunity to rebut union propaganda. As a result, unionizing would become much easier because employees would only hear the unions’ arguments in favor of unionizing, without getting full information on the costs of unionizing to employees and employers alike.
In an Order dated 2/19/2013, the D.C. Court removed this case from the oral argument calendar and held it in abeyance per Noel Canning.
Previously, on May 17, 2012, the U.S. District Court for the District of Columbia ruled that the Ambush Election Rule is invalid "because no quorum ever existed for the pivotal vote in question." Accordingly, the court granted the Chamber's motion for summary judgment and denied the defendant's motion.
Subsequently, the court rejected the NLRB’s motion to amend its May 17 judgment that the Agency’s “ambush election” rule was invalid because it was adopted without a quorum. On July 27, the court ruled that the Agency’s "new evidence" that a third board member was present in the NLRB’s electronic voting room when the rule was adopted was insufficient to prove that the court’s prior decision was a “clear error.” As a result of the July 27 ruling, the ambush election rule is still invalid, and the NLRB’s agreement not to try to enforce the rule against employers is still in effect.
On December 9, the NLRB asked the D.C. Circuit to dismiss the appeal.
NLRB opening brief filed with the DC Circuit on 11/16/12. NCLC's reply brief filed 12/31/12. Board's Reply filed 1/16/13.
Complaint filed 12/20/2011. Amended complaint filed 2/3/2012. Cross-motions for summary judgment filed 2/3/2012. Decided 5/14/2012. NLRB's Motion to Amend the Judgment filed 6/11/12. Plaintiffs' Response to NLRB's Motion to Amend Judgment filed 6/27/12. NLRB's reply filed 7/9/12. Motion to Amend Rejected 7/27/12. NLRB filed Notice of Appeal on 8/7/12.
Chamber 28j letter filed 1/30/12. Case removed from oral argument calendar and held in abeyance (2/19/13).
Stipulation of Voluntary Dismissal filed 12/9/13.