Texas Federal Judge Upholds NLRB’s “Ambush” Election Rule

One of the two courts currently hearing challenges to the National Labor Relation Board’s new representation election rules has ruled in favor of the NLRB.  In Associated Builder and Contractors of Texas, Inc. v. National Labor Relations Board, a trade association and small business advocacy group (Plaintiffs) brought a lawsuit in federal court in Texas challenging the NLRB’s new election rules , sometimes referred to as “ambush” election rules,  on a number of grounds, all of which were rejected by the Court.

First, Plaintiffs argued that the new rules violated the Administrative Procedures Act (APA) as well as the National Labor Relations Act (NLRA) because the new rule’s short time-limits effectively deprived employers of a determination as to whether the unit proposed by the Union was appropriate and which voters were eligible to vote before a representation election.  The Court found that, because the Regional Director could, at least hypothetically, extend time limits to allow such determinations in appropriate cases, the new rules could not be said to be inappropriate under the NLRA or APA; and found no limitation on the NLRB’s to adopt them.

Second, Plaintiffs argued that the new rule’s requirement that an employer disclose employee names and job duties before an election is directed by the NLRB, and the requirement that it disclose personal information (including home addresses, personal mobile phone numbers and e-mail addresses) of employees after an election is directed, invades employee privacy.  The Plaintiffs argued that providing such information to a union seeking election to coerce and harass employee’s into voting in their favor.  The Court rejected this argument on the basis that the prior rule required similar (though more limited) disclosure of information and because there was little evidence of union misuse of such information in the past.  It also found unpersuasive the argument that the new disclosure of employee personal information might increase the risk of identity theft or data breach.

Third, Plaintiffs argued that the new shortened time limits effectively deprived employers of their ability to engage in protected speech in opposition to a union because the new rules dramatically shortened the time between the filing of the representation petition and the date of the election.  The Court rejected this argument on the basis that employers could speak to employees about union representation before an election petition is filed, and finding no requirement that an employer be given the thirty days the previous rules generally provided between the filing of a representation petition and the holding of an election.

Finally, the Plaintiffs argued that the new rules were “arbitrary and capricious.”  In essence, Plaintiffs argued that the Board’s rules were based on a desire to speed up the election process, which Congress never intended the NLRB to consider; and that the effect of the new rules was essentially pro-union.  The Court dismissed this argument, finding that “efficiency” in holding elections was within the Board’s duties, and that there was no evidence of a pro-union bias in the new rules.  The Plaintiffs also noted that the Board had demonstrated this bias because it appeared to retained the rule that an election could be postponed if the Union filed a “blocking charge” (a charge that an employer had committed an unfair labor practice to influence the outcome of an election against the union).  The Court found that “blocking charges” did not always necessarily result in postponement of an election, and that the the Board was within its discretion to permit “blocking charges”. Finally, the Plaintiffs argued that the Board’s rules were contrary to the evidence in the administrative record developed during the comment period prior to the new rules.  The Court summarily dismissed this argument, finding the Board had considered the evidence presented during the comment period.

The decision in Associated Builder and Contractors of Texas, Inc. will likely be appealed to the United States Court of Appeals for the Fifth Circuit, and may reach the United States Supreme Court. Another suit by the United States Chamber of Commerce, National Association of Manufacturers and National Retail Federation is still pending.

Despite initially being invalidated because of the NLRB’s lack of a quorum when it was first adopted, the “ambush” election rule has now withstood this initial federal court test, but also an attempt by Congressional Republicans to overturn it.  While its ultimate future is unclear, in the near-term, it appears the “ambush” election rule is here to stay.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including those relating to the ADA, for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.