The NLRB’s “ambush” or “quickie” election rules are definitely here to stay. A federal judge in a Washington, D.C. district court rejected the U.S. Chamber of Commerce and other business groups’ challenge to the Board’s new rules governing NLRB representation election procedures. The new rules went into effect on April 14, 2015, and altered nearly every stage of the election process. Most significantly, the rules shortened the period of time between the filing of a representation petition and the date of the election. Before the new rules, the median time from petition to election was around 38 days. Now, recent data suggests that employers face a compressed average of 23 to 25 days from filing to election, drastically reducing the amount of time employers have to communicate with employees about unionization. This decision follows on the heels of a Texas district court’s June 1, 2015, decision in favor of the NLRB in a similar suit brought by the Associated Builders and Contractors of Taxes, Inc. and other plaintiffs. A summary of that decision can be found here.
Filed on January 1, 2015, the plaintiffs’ complaint argued that the NLRB exceeded its authority under the National Labor Relations Act when the Board implemented the new representation election rules. The plaintiffs also argued that the rules should be set aside as arbitrary and capricious under the Administrative Procedure Act and that the various changes in the election process violated employers’ First and Fifth Amendment Rights. The D.C. court rejected the plaintiffs’ “dramatic pronouncements” that it found “predicated on mischaracterizations of what the Final Rule actually provides and the disregard of provisions that contradict plaintiffs’ narrative.” The court did not find the NLRB to have abused its discretion or acted in an arbitrary and capricious manner in violation of the NLRA or the APA. Nor was the court convinced that the rule violated an employer’s constitutional rights. The plaintiffs’ “significant policy disagreement with the outcome of a lengthy rulemaking process,” did not sway the court to overturn the rules since the rules were crafted by an agency granted “broad deference” by Congress to implement the NLRA through appropriate procedures and rules.
With the dismissal of both suits against the “ambush election” rules, employers must face the fact that these new rules are here to stay. While there is a chance that plaintiffs from either suit will appeal the decisions, a final resolution is unlikely to be reached in the near future. In the meantime, petitions continue to be filed throughout the country, and employers face a shortened timeframe between petition to election and a myriad of other changes to the representation election procedures. As we’ve mentioned before, preparation is the key to responding effectively, and employers must consider taking steps now, before facing a petition, in order to be able to comply with the NLRB’s new procedures as well as successfully respond to campaign issues arising from a petition.