One Step Backward For NLRB Election Rules

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