NLRB’s “Ambush Election” Rules Survive Federal Court Challenge

Those of you following the controversial recent revisions to the National Labor Relations Board’s union election rules know that those rules went into effect in April of this year, over a Congressional disapproval resolution. (See our previous posts concerning the issuance and implementation of the rules here, here, and here.) These rule changes have been labeled the “ambush election” rules, as they dramatically roll back procedural (and in some cases, substantive) protections to employers (and employees) in the election process in favor of getting to a vote in as little as 11 days.

Two lawsuits were filed seeking to block (or, now that they have been implemented, to void) the new election rules. One of those suits, filed by several groups in Texas, was dismissed earlier this year. On July 29, 2015, a federal judge in Washington, D.C. ruled against the U.S. Chamber of Commerce and several other business and trade organizations in their separate challenge to the new election rules. The court rejected their arguments that the rule changes violated the National Labor Relations Act, the Administrative Procedures Act, and the Constitution, instead finding the plaintiffs’ arguments to be a “policy disagreement with the outcome of a lengthy rule-making process.” Boiled down to its essence, the 72-page opinion held that the NLRB engaged in an extensive public process in formulating, promulgating, and proposing the new rules; that as the federal agency in charge of administering the National Labor Relations Act, the NLRB has wide discretion to formulate what it believes are appropriate procedures to do so; and that the rules did not violate the law or deprive parties appearing before the Board of their constitutional rights. Although an appeal is certainly possible if not likely, for the time being, the new union election rules are here to stay.