Late Friday, the NLRB suffered yet another legal defeat when the U.S. District Court denied the Board’s Motion for the Court to reconsider its June decision invalidating the ambush election rule. The NAM, as a leading member of the Coalition for a Democratic Workplace, is participating in this suit filed by the CDW and US Chamber of Commerce.

As a reminder, under the Supreme Court ruling on New Process Steel, the Board needs to have a quorum of three members in order to issue case decisions or issue new rules. As such, the U.S. District Court ruled the Board lacked the necessary quorum when the final vote on the much-maligned ambush election rule was taken.  After the initial ruling in May, the Board suddenly argued that Member Brian Hayes was in fact present to vote on the final ambush election rule, new information that had never been brought forth before. 

Surprisingly, according to the Board, this routine administrative information was apparently not readily available and not presented in any of the briefs presented to the Court prior to its May ruling. Judge Boasberg, however, stated on Friday, “the Board has neither adequately explained why it could not have presented this evidence at the summary-judgment stage, nor established that the Court’s contrary finding was ‘clear error.’” 

Now we will have to wait to see if the Board decides to appeal this ruling to the Circuit Court of Appeals, or whether the Board will now re-vote the ambush rule with the four- Member Board.  In either case, however, we will stand ready to question the Board’s attempts to alter well-established procedure and practice to pursue its own alternative agenda.