NLRB 2, Employers 0: The Election Rule Wins Again

Another federal court, this one in Washington, D.C., has come down on the side of the NLRB’s new election rule.  Deciding a case the U.S. Chamber of Commerce and several other employer organizations filed, and to which one employer was added, the court found that the NLRB did not act “arbitrarily or capriciously” in issuing the election rule.

As readers of this blog know, the NLRB’s rule – sometimes referred to as the “ambush election” rule – has been in effect since April 14, 2015.  It makes numerous modifications to the election procedures the NLRB has followed for decades.  The intent of those changes is to speed up the process between filing an election petition and holding a secret ballot election.  Initial data suggests that the NLRB has succeeded in that goal.

The decision is lengthy (pdf).  Those with a particular interest may want to read all 72 pages.  In summary, however, the Chamber and the other plaintiffs alleged that the election rule violated the NLRA, as well as the First and Fifth Amendments to the U.S. Constitution.  They also argued that it was arbitrary and capricious under a federal law governing the review of administrative agencies actions.

The court ultimately rejected all of these arguments, finding that the challenges “do not withstand close inspection.”  Instead, the court noted that:

Plaintiffs’ policy objections may very well be sincere and legitimately based, but in the end, this case comes down to a 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.

While the rule itself has survived, it is possible that future cases could challenge the application of the rule to a particular case.  The court primarily addressed what is known as a “facial” challenge to the election rule.  While one of the plaintiff’s attempted to mount an “as applied” challenge, the court found that its challenge was not yet ready for a decision.

The holding in this case underscores the lessons identified for the labor professional after the Texas federal court first upheld the rule:

1. With the NLRB’s second win on this issue, the NLRB’s election rule is here to stay for many more months, if not years. While the Texas decision has been appealed, and this decision may also be appealed, resolution of those appeals will take a substantial period of time, and may not change the result.
2. Prepare now. The DOL’s pending rule on persuaders could limit an employer’s ability to rely upon its traditional resources to prepare for union activity and require employers to report to the government the money expended on those efforts.
3. Expect that the amount of time between the filing of the petition and the holding of the election will continue to fall as the NLRB’s regional offices get more accustomed to processing cases under the new rules.
4. If confronted with an election petition under the new rules, be prepared not only for the “quickie” election, but also to lay the groundwork for a challenge to the rule “as applied” to the particular circumstances.