Monday, June 13, 2016

Fifth Circuit Upholds NLRB's Quickie Election Rules

In an opinion issued on Friday, the Fifth Circuit agreed with a decision from the United States District Court for the Western District of Texas finding that the National Labor Relations Board's (NLRB's) rules amending the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining did not violate the National Labor Relations Act (NLRA) or the Administrative Procedure Act.  A copy of the opinion can be found on the Fifth Circuit's website: http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions.
 
Among other changes, the new rules: (1) allow for employees to take a vote on union representation as soon as eleven days after a petition for representation is filed; (2) defer employer challenges to voter eligibility issues until after an election is held; (3) remove the standard, twenty-five day delay that normally occurs between the time a regional director directs an election and the actual election; and (4) require the expanded disclosure of employee contact information.  The new rules are often referred to as the "quickie election" rules.
 
In the underlying lawsuit, several Texas-based trade and advocacy associations representing construction employers and small business owners brought a facial challenge to enjoin enforcement of the quickie election rules. The facial challenge standard is high, and required the business entities to establish that no set of circumstances exist under which the new rules would be valid. 
 
The District Court agreed with the Board that the standard was not met.
 
In its decision affirming the District Court's decision, the Fifth Circuit noted that the NLRA gives the Board authority to resolve questions of representation, and sets forth basic steps for that process, as well as authority to proscribe rules for processing election petitions.  The Court squarely rejected arguments that the rule changes impermissibly restricted the scope of the pre-election hearing, and that the new rules requiring expanded disclosure of employee contact information conflicted with federal privacy law. It also rejected the argument that the rules interfere with protected speech during election campaigns.
 
In short, the Fifth Circuit now joins the United States District Court for the District of Columbia in upholding the NLRB's quickie election rules.