NLRB Quickie Election Rule Upheld

By Allen Smith June 9, 2015

The National Federation of Independent Business (NFIB) and Associated Builders and Contractors of Texas have lost one legal challenge to the National Labor Relations Board’s (NLRB’s) so-called ambush election rule. The U.S. District Court for the Western District of Texas decided June 1, 2015, the rule’s extremely shortened period from a petition to election was not an interference with speech, and that the rule’s extra required disclosures of personal contact information were not an invasion of privacy.

The Society for Human Resource Management has joined a separate legal challenge of the rule brought by the Coalition for a Democratic Workforce, the National Retail Federation, the National Association of Manufacturers and the U.S. Chamber of Commerce in the U.S. District Court for the District of Columbia.

After the Texas district court decision June 1, Karen Harned, executive director of the NFIB Small Business Legal Center, said, “We are deeply disappointed by the Texas court ruling and we plan to appeal the decision. If this ruling stands, small businesses—which typically do not have in-house labor counsel—will have very little time to make preparations for a union election. It could take 10 days just to find a labor lawyer and get a meeting. They would have very little time to educate their employees on how unionization could affect them, including the impact of union dues on their paychecks.”

She added, “The ambush election is a very badly disguised effort on the part of the federal government to rig the outcome of union elections in favor of organized labor, and we don’t believe it’s legal.”

NFIB Texas Executive Director Will Newton added, “Employees need to hear both sides of the argument in order to make an informed decision. There’s nothing fair about a campaign in which one side can organize quietly for months while the other side only has a few days to respond. The NLRB is stacking the deck in favor of labor unions and we’re not going to let that stand.”

No Interference with Speech

The plaintiffs asserted that the ambush election rule “improperly shortens the overall pre-election time period to an extreme degree, in violation of the ‘free speech’ provision of the act.”

While the time between a petition and election may be as short as 10 days under the new rule compared to as much as 30 days or more under the old, “plaintiffs point to no provision in the act or other statute which mandates a 30-day period for the exchange of information prior to an election,” the district court stated.

“Under the new rule, the regional director is charged with ‘setting the election for the earliest date practicable,’ ” the court noted. “This discretion alone renders it virtually impossible for plaintiffs to show the election period in every set of circumstances violates free speech.”

In addition, the court noted, “Union organizing campaigns rarely catch employers by surprise.” So, employers often “begin speaking to employees about union representation well before a representation petition is filed.”

No Invasion of Privacy

The plaintiffs also protested the requirement that employers disclose the personal phone numbers and e-mail addresses for all employees who are deemed to be part of an appropriate bargaining unit, as well as those whose status has not yet been determined.

Some are concerned that unions are petitioning for elections just to get the lists of employee contact information, then withdrawing the petitions to organize further. But the court wasn’t bothered by this, saying, “Plaintiffs’ concern that unions can ‘game’ the system by filing a clearly deficient petition merely to obtain a list of employee names and work shifts is not well-founded.”

The court reasoned that “while the disclosure of names and job duties required under the new rule is prior to direction of an election, it is after the regional director has found ‘there is reasonable cause to believe that a question of representation affecting commerce exists, that the policies of the act will be effectuated and that an election will reflect the free choice of employees in an appropriate unit.’ ”

The court also was not convinced that the disclosure of e-mail addresses was more invasive than the long-standing requirement of disclosing home addresses. “Virtual contact can be readily ignored,” it stated. “And virtual contact information can be and is routinely changed, unlike a physical home address.”

The plaintiffs expressed concern that disclosure of this personal information increases the risk of identity theft or unauthorized dissemination of personal information. The court dismissed these concerns, citing the NLRB, which found, “These risks are worth taking and as a practical matter, must be taken, if communication about organizational issues is going to take place using tools of communication that are prevalent today. E-mail and cellphones are ever increasing the modes by which people communicate; this continuing expansion in the use of new electronic media demonstrates that the risks associated with these speedy and convenient tools are part of our daily life.”

This case is Associated Builders and Contractors of Texas Inc. v. National Labor Relations Board, No. 1-15-CV-026 (W.D. Texas 2015).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.



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