On June 11, 2016, the United States Court of Appeals for the Fifth Circuit upheld the National Labor Relations Board's (the "NLRB's" or the "Board's") regulations enacted last year, radically altering the traditional rules governing union elections.
As we have discussed previously, the new regulations, which took effect on April 14, 2015, and are referred to collectively as the "quickie election rule," dramatically shorten the potential election timeline – and, consequently, shorten the period of time an employer has to respond to and defend against an election petition. Specifically, the new rule permits electronic filing of election petitions; requires employers to file a statement of position outlining all pre-election hearing issues within seven days after the petition is filed or else risk waiving such issues; mandates that pre-election hearings commence within eight days of the filing of an election petition; requires employers to provide the union with voter information (including modern forms of contact information like personal email addresses) within two days of any direction of election; defers resolution of many voter eligibility issues until postelection; and denies parties the opportunity to file a post-hearing brief as an automatic right.
Several business groups have challenged the facial validity of the new rules in federal court. One such effort, led by the Associated Builders and Contractors of Texas, Inc., was filed in the United States District Court for the Western District of Texas in January of 2015. In this case, Associated Builders and Contractors of Texas Inc. et al. v. National Labor Relations Board, the business groups argued that in enacting the quickie election rule, the Board exceeded its authority under both the National Labor Relations Act ("NLRA") and the Administrative Procedure Act ("APA"), violated employee privacy rights, interfered with protected employer speech and committed an abuse of agency discretion. In rejecting each of these arguments, the district court held that the business groups "ha[d] failed to show the rule, on its face, is in violation" of either the NLRA or the APA.
The business groups appealed this decision in August 2015, but to no avail. In upholding the district court's decision, a three-judge appellate panel opined that "the board identified evidence that elections were being unnecessarily delayed by litigation ... [and] [b]ecause the board acted rationally and in furtherance of its congressional mandate in adopting the rule, the ABC entities' challenge to the rule as a whole fails." The panel also rejected arguments that the rule's greater disclosure requirements presented an increased risk of privacy infringement or identity theft.
In affirming the district court's ruling, the Fifth Circuit joined the United States District Court for the District of Columbia in upholding the quickie election rule. In July 2015, that court rejected a challenge to the rule by the U.S. Chamber of Commerce and other business groups. While that court acknowledged that the plaintiff groups had legitimate policy objections, it found that their objections were simply a "disagreement with choices made by the agency entrusted by Congress with broad discretion to implement the provisions of the NLRA and to craft appropriate [election] procedures."
While a future challenge to the rule as applied may yield a more pro-management result, the Fifth Circuit's dismissal means that the quickie election rule remains in effect for now. As a result, employers should continue taking proactive steps to prepare for a potential union election campaign before a petition is filed. The number of days between the filing of an election petition and the election itself has decreased by 37 percent – from 38 to 24 days – since the new rule's enactment. By developing a logistical election plan and drafting a basic statement of position prior to the filing of any petition, employers may be able to better utilize this shortened period by focusing their efforts post-filing on employee outreach and communication. Such forward-thinking planning may be an employer's best defense against future unionization under the new "quickie election" timeline.
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