Employers concerned over the impact of new National Labor Relations Board union election rules lost some hope last week that federal courts would step in to stop the regulations from going into effect. The NLRB rules substantially shorten the period of time between certification of the election request and the election itself. They reduce or delay legal grounds on which employers can challenge the proposed bargaining unit and file other procedural objections to the election.

Interest groups representing employers sued seeking to challenge the NLRB’s legal authority to issue the new procedural rules. In addition to the usual appeal to federal court in Washington, a group of contractors filed a similar challenge in federal district court in West Texas.

Last week, the Texas judge dismissed the complaint, finding that the NLRB has sufficient authority under the NLRA to issue the regulations. The judge concluded that the statutory language under the NLRA regarding election procedures is very general in nature. The NLRB therefore has the discretion to interpret the statute as long as such interpretation is neither arbitrary nor capricious.

The D.C. challenge to the election rules is still pending, but the rejection of the employers’ arguments in a supposedly more friendly jurisdiction does not bode well for this second challenge. Unless other federal courts or appellate circuits take a different position, employers will need to adapt their union avoidance strategies to deal with the expedited elections. Preliminary NLRB statistics already show that the average election campaign period has substantially decreased since the rules became effective at the beginning of the year.