As we predicted here, several business trade groups filed suit earlier this week challenging the NLRB’s new “ambush election” rule.  The rule, also discussed here, was issued in a 3-2 party line decision on December 12, 2014 and is due to take effect April 14, 2015.  Its primary effect is to streamline the union election process in the workplace by significantly decreasing the time between the filing of an election petition and when the election is held.

Five groups are challenging the rule:  the U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, the National Association of Manufacturers, the National Retail Federation, and the Society for Human Resource Management.  They argue that the shorter timeframe between election petition filing and the election itself  both (1) violates employers’ First Amendment rights by making it more difficult for employers to communicate with their employees, and (2) impermissibly restricts employers’ ability to litigate crucial election issues.

In the complaint (pdf), plaintiffs refer to the new rule as “arbitrary and capricious,” the magic words when challenging agency rulemaking.  Labor professionals should keep an eye on the progress of the lawsuit.  While a suit against an earlier version of this rule was successful, that win rested on a procedural defect in the voting on the rule.  The NLRB remedied this defect with its most recent adoption. 

In addition, the last time the election rule was challenged, the NLRB did not suspend the rule until after a federal judge held that it was invalid.  Indeed, about 150 petitions were filed under the new rule before the NLRB acted.  Whether the NLRB will take the same approach this time is unknown, but likely.  Whether the federal court will rule prior to the effective date of the regulation is also unknown.