Fifth Circuit Affirms New NLRB Representation Rules

Marianne Robbins

On June 10, 2016, the Fifth Circuit, affirmed the NLRB rules which streamlined Union representation elections in Associated Builders and Contractors of Texas vs. National Labor Relations Board.  The decision is thorough and well reasoned and should discourage further challenges like this one. When unions file representation petitions, they can look forward to prompt elections.

The Associated Builders and Contractors (“ABC”) filed the action more than a year ago to challenge the new NLRB representation election rules even before they went into effect in April of 2015.  Such a challenge, known as a facial challenge, is based exclusively on the language of the new rules, not on how the rules are applied.  The ABC challenged virtually every major aspect of the new rules and the Fifth Circuit rejected each and every challenge which ABC put forward.

One of the most important innovations under the new rules is that individual voter eligibility issues are deferred until after an election is held.  The purpose of the hearing under the new rules “is to determine if a question of representation exists,” which, the Fifth Circuit found, is consistent with the National Labor Relations Act (“NLRA”).  The ABC failed to identify any statutory language that required litigation of all voter eligibility issues at pre-election hearings. The Court rejected ABC’s claim that the deferral of pre-election issues would increase the overall time to certify Union representatives.  The Board had considered evidence that more than 70% of elections were decided by margin greater than 20% of all unit employees suggesting that deferral of individual voter eligibility questions would not compromise the Board’s ability to determine election results in the vast majority of cases.

Finally, the new rules give regional directors discretion to determine what record evidence is necessary. Thus, the ABC could not show needed evidence would be excluded from hearing and there was no basis for a facial challenge.

The ABC also challenged the new requirement that employers provide “the full names, work locations, shifts, job classifications, contact information (including home addresses, available personal email addresses, and available home and personal cellular (“cell” and “telephone numbers”) of all eligible voters,” as a violation of privacy rights.  The Board, however, has long required the employers provide names and addresses to unions to ensure fair and free choice by maximizing voter exposure to all arguments, not just the employer’s.  The additional requirements for email addresses, cellular and home phone numbers are no more invasive than provision of home addresses previously required. The Court noted that with technological advances, information can now be provided more promptly in two days, under the new rules rather than the ten (10) days allowed under the prior rule. The Court of Appeals noted “the Board extensively considered the burden on employers and privacy concerns of employees when determining the necessity of the expanded disclosure requirements.”

Next, the ABC challenged the cumulative effect of the rule changes on shortening the pre-election period as a violation of “free speech” under the NLRA.  The Fifth Circuit noted that the prior regulations under which election were not scheduled until the 25thand 30th day after the date of decision, were so that the Board could rule on any requests for review, not to facilitate free speech.  The NLRA does not specify any waiting period and it is unambiguous on this point. Again regional directors have discretion in setting the election date taking into account the opportunity for meaningful speech and therefore precluded the ABC’s facial challenge.

In a last ditch effort to defeat the new rules, the ABC argued that the changes were arbitrary and capricious, speculating that the Board had considered factors that Congress did not intend the Board to consider.  The Fifth Circuit rejected the argument and concluded, “the Board identified evidence that elections were being unnecessarily delayed by litigation and that certain rules had become outdated as a result of changes in technology.,,, Because 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.”