On Monday, a federal court in Texas rejected a challenge to the NLRB’s final rules regarding representation elections, finding the rules do not violate the National Labor Relations Act (NLRA) or the Administrative Procedures Act (APA). While only a first step in a long legal battle over the “ambush” or “quickie election” rules, the NLRB’s victory means that for now employers will be subject to the rules when labor unions file election petitions. 

As we have explained in prior alerts, the NLRB’s new representation election rules significantly shorten the union election timeframe. An election may be held in as few as 11 to 14 days after a petition is filed, down from an average of 38 days under the previous procedures. The Board has significantly overhauled its election procedures by, among other things, accelerating pre-election hearings, requiring employers to file position statements on a variety of legal issues on or before the hearing date, pushing some issues to post-election proceedings, and scheduling elections at the “earliest practicable date.” 

In Associated Building Contractors of Texas, Inc. v. NLRB, a group of businesses challenged the Board’s new rules, arguing the Board exceeded its statutory authority under the NLRA in enacting the rules, and abused its discretion under the APA. The court noted that because the plaintiffs brought a “facial challenge” to the rules, they were required to establish that no set of circumstances exist under which the rules would be valid. 

Restricting Resolution of Threshold Election Issues

Under the new rules, employers are limited in their ability to clarify pre-election issues such as unit appropriateness and voter eligibility. Employers must quickly submit a written Position Statement identifying any basis for challenging unit appropriateness, voter eligibility, or any other issue the employer might raise at the pre-election hearing. The purpose of these rules was to completely postpone issues of voter eligibility and inclusion until afteran election is held. 

The plaintiffs argued the rules violate the NLRA, which requires an “appropriate hearing upon due notice.” The plaintiffs pointed to legislative history of the Taft-Hartley Act of 1947, which amended the NLRA, during which Senator Hartley himself stated the purpose of a hearing is to decide questions of unit appropriateness and eligibility to vote. The court rejected plaintiffs’ argument, finding the broad statutory language granted considerable deference to the Board. The court also found that the new rules give the Board and its regional directors flexibility to adjust pre-hearing procedures for special or extraordinary circumstances and do not preclude a party from challenging eligibility. 

Invasion of Employees’ Privacy

The new rules require employers to disclose more employee information to unions, including names, work locations, shifts, and job classifications, during the processing of a petition. After an election is ordered, the new rules require employers to turn over to the union a list of eligible voters and their contact information, including home addresses, available personal phone numbers (mobile and home), and personal e-mail addresses. Under the old rules, the employer was required to provide only voter names and home addresses as part of the “Excelsiorlist” after an election was ordered or agreed to by the parties. 

The plaintiffs argued that the new rules’ disclosure requirements will impair employees’ protected right to refrain from union activity and invade employee privacy. The court dismissed both concerns. The court saw no reason why the disclosure of information would impair an employee’s right to refrain from union activity and did not believe there was any risk that unions would file deficient election petitions simply to gain access to a list of employee names and job titles. Nor was the court convinced that the new rules’ disclosure requirements created any privacy issues. Rather, the court viewed the new rules as a legitimate exercise of the Board’s authority “to adapt the Act to changing patterns of industrial life,” in this case, new and varied means of communication. 

Interference with Employer Free Speech

The NLRA permits both employers and employees to express their views and opinions during the union election process, as long as the expression does not contain “a threat of reprisal or force or promise of benefit.” The Supreme Court has found that the free speech provisions of the NLRA are meant to encourage debate on issues dividing labor and management.

The plaintiffs argued that the new rules cut the time between the filing of a petition and the election so drastically that employers are deprived of their right to communicate. Once again, the plaintiffs pointed to the NLRA’s legislative history, including sponsor statements that 30-day waiting periods before elections served as a “safeguard against rushing employees into an election where they are unfamiliar with the issues.” Once again, the court found that the statutory language itself provided no support for plaintiffs’ position. Further, the court held changes in technology made communication and the exchange of information much more effective, and much faster, rendering the 30-day waiting period obsolete. Finally, the court also found that union organizing drives “rarely” catch employers by surprise, and employers often begin speaking to employees about union activity long before an election. 

Addressing the plaintiffs’ procedural complaints, the court held that the Board did not violate the APA. The court found the Board properly relied on appropriate factors in changing the rules. For example, the Board considered that pre-election litigation has often been “disordered, hampered by surprise and frivolous disputes” and otherwise side-tracked. The Board’s prioritization of certain factors over others did not render its decision capricious or arbitrary. Therefore, because the Board weighed the relevant factors and considered the evidence presented during the notice and comment period, the rules do not violate the APA. 

For now, the “quickie election” rules are still in effect while this and another legal challenge, pending in the federal district court in Washington, D.C., proceed through the federal courts.