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Appeals Court Upholds Union Election Rule

‘Ambush Election Rule’ upheld by Fifth Circuit

Union vote
AP
June 13, 2016

A federal appeals court upheld a labor regulation that employers say tilts the scales in election toward unions.

The Texas-based Fifth Circuit Court of Appeals preserved the so-called Ambush Election Rule in a unanimous opinion. The National Labor Relations Board, the top federal labor arbiter overseeing union elections, implemented a new set of rules in April 2015 that sped up the time between filing election petitions and the day of the vote.

The new rule allows a vote to take place in as few as 11 days after the initial petition; employers must also hand over personal contact information for workers, including email addresses and cell phone numbers, to union organizers.

Business groups led by the Association of Builders and Contractors (ABC) challenged the regulations, saying that the agency overstepped the rule making authority granted to it by the National Labor Relations Act and that the rule was harmful to employee privacy. A three-judge panel—two George W. Bush appointees and one Barack Obama appointee—dismissed the suit.

"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 ruling said. "We hold that the challenged provisions of the Board’s rule neither exceed the scope of its authority under the NLRA nor violate the APA’s arbitrary and capricious standard."

Labor lawyers say the ABC suit faced a high legal hurdle.

Glenn Taubman, an attorney with the National Right to Work Legal Defense Foundation, said such challenges require plaintiffs to "show a direct violation of the governing statute or the courts are going … to defer" to the agency.

"It’s really hard to bring a facial attack against a fed rule like this," Taubman said. "The burden is on you to show that the rule could never be applied lawfully or show that the agency was way outside the statutory bounds," Taubman said.

Critics have argued that unions enjoy an inherent advantage under the new rules. Labor organizers can spend months and even years wooing workers on the merits of unionization. Employers are limited to campaigning between the NLRB’s election notice and the day voting begins; shortening that window leaves them less able to conduct a thorough campaign.

Unions, which typically win about 70 percent of secret ballot votes, have ramped up election petitions in the wake of the rule. The wait time fell by nearly 40 percent from 38 days to 23 days in the immediate aftermath of the new rules.

Congressional Republicans have attempted to prevent the agency from implementing the new rules. The Senate and House passed a resolution in March 2015 saying that the agency had overstepped its rule making authority. President Obama vetoed the resolution on March 31, saying that the regulations were designed to "streamline a democratic process that allows American workers to freely choose to make their voices heard."

The court agreed with the administration, saying that the plaintiffs failed to prove that the agency exceeded its bounds to set and apply union election rules. The court ruled that streamlining the vote through further disclosure fell within the scope of its power.

"We may favor greater privacy protections over disclosure, but it is within the Board’s discretion to weigh competing interests and promulgate rules that advance the goals of the [National Labor Relations] Act. Its reasoning is not irrational and it is not the province of this court to inject a contrary policy preference," the ruling said.

Taubman remains critical of the rule’s practical applications. The short election window applies only to union certification votes, while decertification or membership withdrawal petitions face longer timetables and are subject to stalling tactics from labor organizers. He said that the agency should apply the standards uniformly.

"The whole point of the ambush election rule was to get unions in power that much easier and keep them in power for as long as possible," he said. "There is no symmetry: certification can happen at the snap of a finger. Decertification remains burdensome and difficult."

The agency declined to comment on the ruling. An ABC spokesman told the Washington Free Beacon that the group "is disappointed with the decision and we are evaluating our options." She declined to say whether ABC plans on appealing to the Supreme Court.

Published under: NLRB , Unions