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 reconsideration).
The case was further complicated by an additional argument raised on appeal, that one of the two participating Board members 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 starting the rulemaking process over 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 direction.
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.”