NLRB’s Election Rule Wins in Court

By Nelson Cary and George Stevens

A federal judge in Texas dealt a serious blow to opponents of the NLRB’s new “ambush” election rule yesterday afternoon, tossing out a lawsuit from business groups challenging the rule.  Opponents of the rule have now lost in both court and in Congress.  There is only one remaining court case challenging the rule in the District of Columbia, but if this ruling from Texas is any indication, employers should not hold their breath for a reprieve from the rule.

The business groups suing in Texas made familiar arguments against the rule, which took effect April 14.  For example, the business groups argued that the requirement that an employer give the union a list of potential bargaining unit employees, complete with names, home addresses, home and cell phone numbers, and email addresses, violated employees’ right to privacy.  The business groups also argued that the rule drastically shortens the amount of time between petition and election, and in doing so, violates the right to free speech by preventing an employer from campaigning against unionization to its employees.

The Court rejected both of those arguments.   First, it attacked the privacy concern.  The Court did not understand how a list of potential bargaining unit employees “would afford a union representative an opportunity to invade privacy which is significantly greater than available by waiting for an employee at the exit of a job site.”

Next, it dismissed the business groups’ free speech concerns, noting first that a change in communication technology means “the expressed need for a specific time period [to communicate with its employees] in 1959 is of little relevance half a century later.”  Importantly, the Court noted that “union organizing campaigns rarely catch employers by surprise . . . many employers begin speaking to employees about union representation well before a representation petition is filed.”  The Court also rejected a number of other arguments business groups made against the rule, a full discussion of which can be found in the opinion (pdf).

There are several key takeaways for the labor profession from this decision:

1. Of the two court challenges filed, the NLRB has now emphatically won one of them, with the other still pending.  Based both on this case and a previous denial of a TRO by the judge in the DC case, it seems that the writing may be on the wall:  the NLRB’s rule could be here to stay.
2. The Court’s message to employers seems clear:  there is plenty of opportunity under the new rule to campaign and to litigate issues.  The remedy for employers, therefore, lies in preparation and training on the rule.  Relying exclusively on litigation to defeat the rule is a risky alternative.
3. That preparation is better done now rather than later.  The DOL’s rule on persuader activity is still on the horizon.  It could limit an employer’s ability to rely upon its traditional resources to prepare for union activity and require employers to report to the government the money expended on those efforts.
4. Union elections will continue to be conducted quickly.  Early reports already suggest a halving of the time between petition and election.  As the NLRB’s regional offices get more used to the new rules, the possibility of the time dropping further cannot be ruled out.