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In for Long Haul as Fifth Circuit Upholds NLRB’s “Quickie” Election Rule

Last April, the National Labor Relations Board (“Board”) implemented it’s new expedited union representation procedures. On June 10, 2016, in Associated Builders and Contrs. Of Tex v. NLRB, 15-cv-50487  2016 U.S. App. LEXIS 10552 (5th Cir. June 10, 2016) the Fifth Circuit upheld the new procedures, commonly called “quickie” election rules – – rejecting the Associated Builders and Contractors of Texas’ (“ABC”)) arguments that the rule exceeded the Board’s authority under the National Labor Relations Act (“NLRA”) and that it violated the Administrative Procedures Act (“APA”).

Specifically, ABC alleged that the rule exceeded the Board’s authority under Section 9 of the NLRA by allowing regional directors to preclude employers from contesting voter eligibility issues. The Court, however, found that ABC did not identify any statutory language or legislative history requiring litigation of all voter eligibility issues at the pre-election hearing. The Fifth Circuit agreed with the Board’s position that Inland Empire District Council, Lumber & Sawmill Workers Union v. Millis, 325 U.S. 697, 706 (1945) granted the Board wide discretion to devise the procedures to determine whether a representation question exists and rejected ABC’s argument that Inland was inapplicable because it was decided prior to the Taft-Hartley amendments.

ABC also challenged the rule on grounds thathe the rule’s provisions requiring disclosure of personal employee information both before and after the pre-election hearing conflicted with federal privacy law and that the requirements were ‘arbitrary and capricious’ under the APA. The court rejected the first argument on grounds that ABC failed to identify any federal law restricting disclosure of employee information to unions by employers. With regards to the second argument, the court found that the Board had properly considered privacy concerns, advancement in communication technology and the potential for union abuse in formulating rule. As a result, the court held that the Board’s rule was not ‘arbitrary and capricious’.

The Court also rejected ABC’s claims that the new rule would violate the free speech provision of the NLRA. Rather, the court held that the discretion afforded regional directors in setting election dates, provided sufficient protection for employers and employees to engage in meaningful speech.

Given the Court’s decision, employer’s must continue to be prepared for operating under the “quickie” rules in the event of an organizing drive.

© 2019 Proskauer Rose LLP.

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About this Author

Michael J Lebowich, Labor, Employment, Attorney, Proskauer, Law Firm
Partner

Michael Lebowich is a Partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He...

212-969-3217
Steven Porzio, Proskauer, labor attorney, employment lawyer,
Associate

Steven Porzio is an associate in the Labor & Employment Law Department and a member of both the Labor-Management Relations Group and Employment Law Counseling & Training Group. Steve assists both unionized and union-free clients with a full-range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board. 

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing, and union contract campaigns. Steve has advised employers in a number of different industries in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

212-969-3079