The National Labor Relations Board’s (NLRB) controversial rules that speed up union election cases passed a big hurdle in court as the U.S. District Court for the Western District of Texas rejected a challenge filed by a collection of Texas business groups.
The new rules, which became effective in April of this year, made several changes that the NLRB contended would modernize their process and eliminate unneeded litigation and delay. Specifically, the rules:
- Shorten the deadline for the employer to produce a voter eligibility list from seven days to two absent special circumstances or agreement of the parties to the contrary;
- Shorten the deadline for conducting a hearing on the legal issues to just seven days after the Notice of Hearing is issued, absent special circumstances;
- Require that employee e-mail addresses and phone numbers be disclosed and electronically transmitted to the Union to permit more efficient communication; and
- Consolidate all election-related appeals to the NLRB into a single post-election appeals process.
In Associated Builders & Contractors of Tex., Inc. v. NLRB, No. 15-cv-00026 (W.D. Tex. June 1, 2015), an alliance of Texas business groups requested that Federal District Judge Robert L. Pitman enjoin the enforcement of the new rules because the NLRB exceeded their legal authority, violated employees’ privacy rights, interfered with employers’ protected speech during election campaigns, and generally acted in an arbitrary and capricious manner. Judge Pitman rejected each of these arguments, citing repeatedly to the great deference that must be accorded to government agencies, as well as the flexibility and discretion that the NLRB had to make exceptions if the rules proved too burdensome in any particular instance.
This decision is already being appealed. And, there is a second case working its way through the courts that also challenges these new rules, so all is not lost yet. Still, this is a disappointing decision and should be taken as a sign for employers to remain vigilant and prepared at all times to initiate a strong union campaign if a petition is filed. There likely will not be much time to collect your thoughts.