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The National Labor Relations Board (NLRB) acted lawfully in implementing significant changes to the procedures applicable to union elections, the 5th U.S. Circuit Court of Appeals decided. In 2014, the NLRB issued a final rule modifying the procedures for determining if employees wish to be represented by a union for purposes of collective bargaining. The board's rule changes fell into three primary categories. Category 1 of the rule changes limits the scope of the hearing that must be held before a union election takes place. These changes give board officials the ability to postpone individual voter eligibility issues and other issues until after the election. Category 2 of the rule changes requires employers to disclose to unions a broader range of personal information about eligible employees than before, including work locations, shifts, job classifications, and personal e-mail addresses and telephone numbers. Such information must be provided within two days of an election order (rather than seven days under the prior rules). Employers also must disclose such information before the NLRB determines whether there is a sufficient showing of interest to proceed to an election. The Category 3 quickie election rule changes shorten the time period between filing for an election and the election itself to as soon as 11 days. Under the prior rules, at least 25 days had to elapse between the ordering of an election and the actual election. Associated Builders and Contractors of Texas Inc. and two other Texas trade associations (collectively ABC) sued, claiming that the board lacked the power to make the rule changes and that the changes were unlawful for other reasons. The district court found the NLRB's rule changes to be valid and the 5th Circuit agreed.The National Labor Relations Act (NLRA) empowers the board to resolve union elections. Section 9 of the NLRA gives employees the right to bargain collectively through a union or to refrain from doing so. The appeals court applied a presumption of validity to the board's rule changes, agreeing that the board's decisions should be afforded a high level of deference. To invalidate the NLRB's rule changes, ABC would have to prove that under no set of circumstances could the changes be found to be valid. The 5th Circuit upheld Category 1 of the NLRB's rule changes, finding nothing in the NLRA requiring the board to decide voter eligibility issues before an election. The NLRA only requires the board to hold an "appropriate hearing" before a union election and to decide the appropriate employee unit for the purposes of collective bargaining. The appeals court explained that the NLRB's rule merely gave board employees discretion to postpone determination of voter eligibility issues until after the election; they also have the discretion to address these issues at the pre-election hearing. ABC challenged the Category 2 rule changes primarily on the ground of employee privacy. However, the 5th Circuit found that there were no federal laws protecting the disclosure of employee information to unions. It also noted that employers had to provide unions with only the information that employees had already shared, diminishing somewhat the employee privacy interests at stake. ABC argued that unions might misuse the personal employee information that employers had to disclose. The 5th Circuit disagreed, stating that the rule prohibits parties from using the information for any purposes other than the election or related matters. It acknowledged that there might be a potentially increased risk of identity theft and data breaches under the new rules. However, the appeals court was comfortable that the board had weighed these concerns against the benefits the rule was designed to address and refused to second-guess the NLRB. The 5th Circuit also found the Category 3 quickie election rule changes to be valid. The NLRA does not require a specified waiting period prior to an election. The appeals court found significant the board's findings that many employers begin to speak to employees about union representation before a union election petition is filed and that employers can require employees to attend meetings urging them to vote against union representation. Associated Builders and Contractors of Texas Inc. v. NLRB, 5th Cir., No. 15-50497 (June 10, 2016).Professional Pointer: The commonly held view is that the board tends to side with employees and unions in election-related matters. But this is a federal circuit court decision upholding the board's broad rights to alter the rules governing union elections. The NLRB's rule changes will likely significantly affect union elections in ways that are unfavorable to employers. Robert D. Shank is an attorney with Denlinger, Rosenthal & Greenberg Co. LPA., the Worklaw® Network member firm in Cincinnati.
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