The NLRB has agreed to
voluntarily dismiss its D.C. Circuit appeal in the
so-called "ambush" election rules case.
The voluntary dismissal of the appeal effectively
renders the Board's previously promulgated election
rules a dead letter. But this may be a case of one step
backward, two steps forward, for the Board.
The case was on appeal from a federal district court
decision holding that the election rules were
unlawfully promulgated, because one of three
sitting Board members did not participate in the promulgation
process (a ruling which the district court refused
to change on
The case was further complicated by an additional argument
raised on appeal, that one of the two participating Board
had not been properly recess-appointed under the D.C.
Circuit's Noel Canning decision. This
argument caused the D.C. Circuit to place the
rulemaking case in abeyance pending the Supreme
Court's decision in Noel Canning, which is not
expected until sometime in the late Spring of 2014.
Apparently the Board calculated that the difficulty of
the legal issues and the delay involved in resolving them in
litigation, made abandoning
the appeal and re-starting the rulemaking
process a better option. Board Chairman Mark Pearce
has made no secret of his desire to complete the revision of
the Board's election rules which began in 2011. The
voluntary dismissal of the appeal looks like step in that
It remains to be seen what additional steps the Board will need
to take, and there are undoubtedly other hurdles the
Board will need to clear in order to move forward. But
to paraphrase an old proverb, "A journey of a thousand
miles sometimes begins with one backward step."
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