Hunton Employment & Labor Perspectives

The United States District Court for the Western District of Texas has just denied one of the employer community’s challenges to the NLRB’s ambush election rules.  As covered previously, the Board’s new election rules, which went into effect on April 14, 2015, shorten the potential timeline for elections to be held 11 to 12 days after a union representation petition has been filed.  Several business groups have challenged the validity of the ambush rules in the federal courts. 

In Associated Builders and Contractors of Texas, Inc., et al. v. NLRB, business group plaintiffs argued for the invalidation of the ambush rules through an expedited summary judgment bid.  Specifically, the plaintiffs asserted that the rules violate the National Labor Relations Act and the Administrative Procedure Act by exceeding the Board’s statutory authority, violating employees’ privacy rights, interfering with protected speech during election campaigns, and being arbitrary and capricious and an abuse of agency discretion.  The Court rejected each of these arguments, ruling , that “plaintiffs have failed to show the new rule, on its face, is in violation of the [NLRA] or the APA.”   

“While the ruling is a blow to the employer community’s opposition to the new rules, it is not the end of the road,” notes Hunton & Williams’ labor and employment attorney and team head, Greg Robertson. The plaintiffs plan to appeal, and another lawsuit challenging the rules remains pending in federal court in Washington, D.C.  Ultimately, however, employers cannot count on the success of the legal challenges to the ambush rules in federal court.  “Employers should remain proactive and prepared to run an effective campaign within a time frame that will likely become more constricted in the next few months.  The Board has already reduced the median timeline from 38 days to around 23 days.  I would expect to see that number drop,” notes Mr. Robertson.  Stay tuned for more developments.