Work it Out Blog

NLRB Election Ambush Rules Survive Court Review

Aug 13, 2015

For the second time in as many months, a United States District Court upheld what are commonly referred to as the “Election Ambush Rules” adopted by the National Labor Relations Board.  The rules dramatically lessen the time between the filing of a union election petition and the holding of a secret ballot election.  Among other things, the rules do away with pre-election evidentiary hearings and defer questions on the appropriateness of a bargaining unit after an election is held.   Employers must furnish to the organizing union, telephone numbers, including mobile numbers, as well as email addresses of all employees eligible to vote in the union.

As expected, the new rules have resulted in a sharp increase in union election petitions.  During the first month the rules were in place, data shows a 17% increase in the number of petitions filed in the same time frame from 2014, and a 32% increase of number of petitions filed in the last month of the previous rule.  The rules are also accomplishing the desired effect in lessening the time between the filing of a petition and election.  In the first month rules were in place the median time between filing and election was reduced to 23 days, a 40% reduction.

United States Judge Robert L. Pitman, of the United States District Court for the Western District of Texas, dismissed a challenge to the rules on June 1, 2015.  Plaintiffs in that case included Associated Builders and Contractors of Texas and the National Federation of Independent Businessmen who argued that the new rules violated both the Administrative Procedures Act and the National Labor Relations Act.

In July, United States District Court Judge Amy Berman Jackson, of the United States District Court for the District of Columbia, rejected a similar claim filed by the United States Chamber of Commerce and other business groups.

It is anticipated that courts of appeals will weigh in on the validity of the regulations and Congress could as well.  What is known is that the Election Ambush Rules remain the law of the land, at least for now.  Because of the shortened process, the need for advanced preparation to combat a union organizing campaign is paramount. Please contact Bob McBride, or your Day Ketterer attorney at to learn more.

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.