A federal judge in Texas recently rejected a challenge to the NLRB’s “quickie” election rules that went into effect on April 14, 2015. One of the significant changes resulting from the enactment of the new rules is the shortening of the timeline for union elections, which the NLRB asserts “modernize[s] the representation case process and fulfill[s] the promise of the National Labor Relations Act.” In Associated Builders & Contractors of Texas, Inc. et al. v. N.L.R.B., the plaintiffs, a trade association and a small business advocacy organization, filed suit against the NLRB, arguing that the election rules are invalid under the Administrative Procedures Act because they: (1) exceed the NLRB’s statutory authority by impermissibly restricting an employer’s ability to fairly litigate issues in a union election; (2) violate the NLRA by compelling the invasion of employee privacy rights; (3) violate the NLRA by interfering with protected speech during union election campaigns; and (4) are arbitrary and capricious and an abuse of agency discretion.
In granting the NLRB’s dispositive motion, the court addressed and dismissed each contention submitted by the plaintiffs. First, the court held that the plaintiffs failed to offer any binding authority to support their contention that the new election rules violate the NLRA or the APA. Second, the court was not convinced that the new election rules invade employee privacy rights, noting, among other things, that the plaintiffs’ “concern that unions can ‘game’ the system . . . is not well founded,” and that the plaintiffs presented no authority prohibiting disclosure of employee information to union representatives. The court also dismissed the plaintiffs’ concern that “disclosure of additional personal information subjects employees to a risk of identity theft and data breach.” Third, the court ruled that the new election rules do not impermissibly burden speech because employers indeed have “an unfettered ability to rapidly disseminate their election position after an election petition is filed.” Lastly, the court held that plaintiffs’ assertion that the new election rules are arbitrary and capricious and an abuse of agency discretion lacked merit because the election rule changes were made “only after an exhaustive and lengthy process, involving presentation of evidence and testimony by numerous parties.”
The Texas court’s decision is now being appealed. Also, another case challenging the NLRB’s new union election rules remains pending in the federal district court in Washington, D.C.