Volume 2, Issue 1 - January 15, 2014

The National Labor Relations Board has agreed to voluntarily dismiss its appeals of a D.C. Circuit Court ruling that overturned its ambush union election rules decision.

The ambush election decision, which has been held in abeyance due to court challenges soon after it was adopted in 2011 decision, was designed to make it easier for unions to win organizing votes by substantially reducing the amount of time employers had to mount defenses before the elections are held.

The board’s voluntary dismissal of the court appeal effectively withdraws the election rules. The case was further complicated by an additional argument raised on appeal, that one of the two participating board members had been improperly recess-appointed by President Obama.

The Supreme Court is expected to deliver a ruling about the legitimacy of those recess appointments later this Spring.

Late last year the President was able to replace those questionable appointees with new ones who were confirmed by the Senate and thus their appointments cannot be challenged on that basis.

It appears the new board figured that with all these legal complications, it made more sense to abandon the ambush election appeal and start the rulemaking process over again in the near future.

The current NLRB Chairman Mark Pearce earlier stated his support for taking this approach, and the voluntary dismissal of the appeal is seen as the first step in that direction.

Among other actions this year, the new board also is expected to require union access to employer-owned email systems to distribute union campaign materials, and make employers publicly report all information about third parties giving them advice during union elections, including attorneys.