Hunton Employment & Labor Perspectives

On July 29, 2015, the U.S. District Court for the District of Columbia held that the National Labor Relations Board (“NLRB”) had authority to adopt its new “ambush election” rules. These new rules, which became effective on April 14, 2015, made dramatic changes to the NLRB’s traditional rules governing union representation elections. The rules shortened the length of representation elections from approximately 40 days to as short as 11 days. In addition, the rule prevents employers from legally challenging an election until after its workers have voted. Business groups across the country have now begun the process of challenging these rules in federal courts. As we previously reported, the U.S. District Court for the Western District of Texas has already dismissed one set of petitioners’ challenges and upheld the ambush election rules. However, on August 10, the petitioners filed an appeal asking the Fifth Circuit to overturn the decision.

In the present case, U.S. Chamber of Commerce, et al. v. National Labor Relations Board, the petitioners challenged the new rule on several grounds. The petitioners claimed that the NLRB lacked authority under the National Labor Relations Act (“NLRA”) to enact the rule in the first place and that, in addition, the rule was “arbitrary and capricious” and an “abuse of discretion” under the Administrative Procedure Act (“APA”). The petitioners also claimed that the rule violated employers’ First and Fifth Amendment rights. Despite these contentions, the court contended that the plaintiffs did not adequately identify “which provisions of the Final Rule violated which provisions of the NLRA and the Constitution and how.”

While the court did acknowledge that the plaintiffs’ “policy objections” may be “sincerely held and legitimately based,” it claimed that these objections amount to nothing more than a simple “disagreement with choices made by the agency entrusted by Congress with broad discretion to implement the provisions of the NLRA and to craft appropriate procedures.”

Hunton & Williams’ labor and employment attorney Kurt Larkin offered his thoughts on the ruling: “Although the ruling is disappointing, I think litigation over the Board’s new election procedures will continue. The district court noted that the legal challenges presented in the case were facial challenges. It remains to be seen whether the courts will view things differently in a case where an employer has gone all the way through the Board election process and can claim it was actually harmed by the new rules.”

As more employers continue to challenge the rule, both on its face and eventually as applied to specific elections, we will continue to follow related litigation concerning the ambush election rules.