The National Labor Relations Board’s new rule shortening the union election timeline that has been upheld in Texas by U.S. District Judge Robert L. Pitman may negatively influence a parallel suit by the U.S. Chamber of Commerce. As a result employers may end up waiting until election petitions are filed to challenge the rule, according to management-side attorneys.

Judge Pitman ruled on Monday that Associated Builders and Contractors of Texas Inc. and other plaintiffs did not prove that the NLRB’s new election rule, is on its face, a violation of the National Labor Relations Act or the Administrative Procedure Act. The new rule went into effect in April. That decision may weigh on the mind of D.C. federal judge Amy Berman Jackson as she considers a similar facial challenge to the rule brought by the Chamber, the attorney say.

While the Texas judge’s decision is not binding on the D.C. court, the Chamber of Commerce may be challenged in making their claims.

The NLRB has been considering the rule a long time and has been shoring up its defense, making a challenge to the rule at this level difficult, according to Steve W. Suflas, a partner at Ballard Spahr LLP. “The board anticipated some of these challenges,” Suflas said.

The next wave of battles may not happen until after elections actually are held and employers actually encounter the problems they anticipate, according to Suflas.

“I think people are going to have to make challenges at back end of the process,” he said.

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Labor and Employment