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On May 14, 2012, the United States District Court for the District of Columbia ruled that the NLRB’s “ambush” election rule (which would have dramatically shortened election times and removed a number of the potential procedural delays in the election process) was invalid because the NLRB lacked a quorum when it published the rule on December 22, 2011. The Court’s ruling (which was based on the Supreme Court’s earlier invalidation of NLRB action taken without the required quorum in New Process Steel) found that there was not the quorum necessary to pass the rule because one of the three sitting members of the NLRB did not vote.

This essentially means moving forward that there will be no substantive changes to NLRB rules (including the adoption of an “ambush” election rule) unless three sitting board members vote. While it is possible that the newly constitutional Board may take this issue up again, the questionable nature of the NLRB’s “recess” appointment will likely mean that all future Board rulemaking in this direction will face legal challenge.

A copy of the Court documents can be found here.

If you have any questions or would like a more detailed discussion of this rule, please contact Andy Martone at (314) 862-0608 or