On June 1, Judge Robert E. Pittman of the U.S. District Court for the Western District of Texas rejected a challenge by several employer groups to the new NLRB “quickie” election rules that went into effect on April 14. The plaintiffs are appealing Judge Pittman’s decision to the U.S. Court of Appeals for the Fifth Circuit.
This is one of three well-publicized challenges to the rules filed by employers and employer groups (and, in one case, by several employees). The other two challenges are pending in federal court in Washington, D.C.
Judge Pittman, in granting the NLRB’s motion for summary judgment, ruled that the plaintiffs failed to show that “no set of circumstances exists” under which the NLRB rules would be valid. In so ruling, he rejected arguments that the rules denied employers a right to an “appropriate hearing” and violated employers’ rights to free speech. He held that the Board regulations allowed employers to raise legal issues related to voter eligibility post-election and that employers had time to get their message out to voters before the elections and could even begin “talking” about elections before a petition was filed. He also rejected the employers’ claims that the rules were arbitrary and capricious, noting that the Board adopted them only after a long process.
The Texas decision is a setback to those challenging the rules, and the judge in Washington, D.C., who is hearing similar challenges, sent notice to the parties in those cases that she is aware of the Texas decision and needs no supplemental briefing on it. Employers and their representatives will be watching the D.C. cases and the appeal of this Texas decision. Even if all the challenges to the rule fail, there may be opportunities to challenge the application of the rules in specific circumstances. Employers and their representatives are expected to raise challenges to the rules in any contested election proceedings before the Board, in order to preserve the argument that the rules are invalid.