In a closely watched case, Associated Builders and Contractors of Texas, Inc., et al v. NLRB,* a federal district court judge in Texas has dismissed one of the two lawsuits filed earlier this year against the National Labor Relations Board seeking to invalidate the agency's new "ambush" election rule. The court ruled against the NLRB on the issue of "ripeness," finding that enforcement of the rule is sufficiently “likely, concrete and imminent” to allow the court to rule on its merits. The court then upheld the merits of the new rule and granted final judgment in favor of the NLRB.

The business group plaintiffs challenged 10 different aspects of the new election rule.  They argued it should be invalidated under the National Labor Relations Act and Administrative Procedure Act (APA) because it: (1) exceeds the Board’s statutory authority by impermissibly restricting employers’ ability to fairly litigate issues of unit appropriateness and voter eligibility in petitioned-for bargaining units; (2) violates the NLRA by compelling the invasion of employee privacy through the disclosure of personal information; (3) violates the NLRA by interfering with protected speech during union election campaigns; and (4) is arbitrary and capricious and an abuse of agency discretion.

The district judge, recently appointed by President Obama, disagreed, holding that the Board acted within its statutory authority and with adequate justification under the APA.  This decision will now be appealed to the U.S. Court of Appeals for the Fifth Circuit, and could set the stage for an eventual showdown in the U.S. Supreme Court.