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NLBMDA: NLRB Reissues “Ambush Election” Rule

After receiving more than 66,000 comments on the rule in December 2011, the NLRB issued a shortened version of the proposal as a final rule that removed several controversial provisions, but the strict rule remained unacceptable to many employer groups.

Although the Board normally has five members, there were only three Board members at the time of the decision (two Democrats and one Republican) on the final rule; the minimum needed for a quorum and to implement a new rule. However, the rule was approved with only the two Democratic members of the Board, as the Republican member did not participate.

NLRB’s speedy action in issuing the Final Rule was taken just before the expiration of Democratic Member Craig Becker’s recess appointment to the Board, which reduced the Board to two members, thereby preventing it from taking any further action without a quorum of three members.

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CDW and the U.S. Chamber of Commerce filed a complaint with the U.S. District Court for the District of Columbia seeking an injunction against the final rule arguing NLRB lacked the statutory authority to pass it. The rule did take effect on April 30, 2012, but was invalidated several weeks later on May 14, 2012, when Judge James Boasberg held that the NLRB did not have the required quorum of three members when voting to implement the new rule.

In his opinion invalidating the rule, Judge Boasberg noted, “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.” Following the federal court decision, the Senate confirmed five Board members last summer. And in December 2013, the Board abandoned its appeal in the ambush election case before officially withdrawing the rule in January 2014.

Fully staffing the Board and withdrawing the rule set the stage for the Agency to reissue the rule last month.

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NLRB is seeking public comments on the proposed rule and is taking responses until the deadline on April 7, 2014. The initial comment period will be followed by a 7-day reply comment period (which expires on April 14, 2014) allowing the public to address the initial comments to the proposed rule. In addition, the Board will hold a public hearing during the week of April 7 in Washington, D.C., allowing the public to address the proposed rule.

NLBMDA opposes the NLRB’s decision to reissue the ambush election rule and plans to file comments on behalf of dealers to challenge the need to shorten the Union election process.

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