“Ambush” Election Challenge Fails in Federal Court

A federal judge in Texas recently ruled in favor of the National Labor Relations Board (NLRB) in a case challenging the Board’s “ambush” election rules. The lawsuit, Associated Builders and Contractors of Texas, Inc. v. National Labor Relations Board, No. 1:15-cv-00026 (June 1, 2015), was filed by a trade association and a small business advocacy organization. The plaintiffs claimed that the ambush election rule would harm their members and infringe their members’ rights under the National Labor Relations Act (NLRA).

The plaintiffs sought declaratory and injunctive relief. They argued that the new election rule should be declared invalid under the Administrative Procedures Act (APA) because it (1) exceeded the NLRB’s statutory authority; (2) violated the NLRA by compelling the invasion of employee privacy rights; (3) interfered with protected speech; and (4) was arbitrary and capricious and an abuse of agency discretion. Federal judge Robert L. Pitman of the Western District of Texas granted the NLRB’s motion for summary judgment, finding that the plaintiffs had pointed to “nothing in the record which supports their conclusion that the Board intended to favor organized labor.”

I. The NLRB’s Rulemaking Authority

The plaintiffs argued that the rule exceeded the NLRB’s authority “by impermissibly restricting employers’ ability to prepare for, present evidence relating to, and fairly litigate issues of, unit appropriateness and voter eligibility in petitioned-for bargaining units.” Judge Pitman ruled that the plaintiffs had not presented any binding authority to the effect that the NLRB lacked the authority to require the changes implemented in the new rule.

II. The Rule, the NLRA, and Privacy Concerns

The court next turned to the plaintiffs’ second argument. The rule violated the NLRA, they argued, “by failing to assure to employees the fullest freedom in exercising the rights guaranteed by the Act by compelling the invasion of privacy rights of employees by disclosure of personal information prior to any determination that a union’s petition is sufficient to proceed to an election” and “by interfering with protected speech during union election campaigns.” With regard to the invasion of privacy claim, Judge Pitman again found in favor of the NLRB:

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.

Nor is it clear why Plaintiffs believe disclosure of a list of names and job duties would result in either a violation of the Act or an employee’s personal privacy. Plaintiffs do not explain how this information would interfere with an employee’s ability to exercise his or her right to decline to talk to a union representative.

Judge Pitman downplayed the risks—identity theft and data breach—that the plaintiffs claimed might result from the delivery of employees’ personal information to unions.

III. The Rule, the NLRA, and Protected Speech

The court next turned to the plaintiffs’ third argument: that the new rule violated the Act by interfering with protected speech during union election campaigns. Specifically, the plaintiffs argued that “in adopting the New Rule, the Board manifested a ‘relentless zeal for slashing time from every stage of current pre-election procedure.’” The plaintiffs used the legislative history of the NLRA to argue that a 30-day period before an election was needed. Once again, Judge Pitman disagreed, finding that the plaintiffs had not shown a provision in the NLRA that mandated a 30-day period for the exchange of information prior to an election.

IV. Arbitrary, Capricious, Abuse of Agency Discretion

Finally, the court considered the plaintiffs’ argument that the ambush election rules were arbitrary and capricious, and thus should be held unlawful. The court found that the new election rule “was focused on making the election process more efficient” and that “[i]ncreasing efficiency and effectiveness are hardly bases for concluding enactment of a rule is arbitrary and capricious.” The judge also noted that the ambush election rule was enacted “only after an exhaustive and lengthy process” involving careful review of the evidence and arguments. Thus, Judge Pitman rejected the plaintiffs’ argument that the Board had acted in an arbitrary and capricious manner in enacting the rules.