Fifth Circuit Upholds NLRB's New Expedited Election Rule

On June 10, 2016, a panel of the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana and Mississippi) upheld the National Labor Relations Board’s new expedited election rule in an action named Associated Builders and Contractors of Texas, Inc., et al. v. National Labor Relations Board. The decision from the conservative Fifth Circuit is a setback for the new rule’s opponents. 

The New NLRB Rule

The NLRB’s new rule dramatically shortens the duration of union elections by changing pre-election procedures in the following ways: 

• The hearing officer may limit the pre-election hearing so as to exclude important issues related to bargaining unit composition and voter eligibility. 
• The hearing officer may cause the NLRB to direct an election immediately, with all appeals now consolidated into a single post-election appeal procedure.
• Within two days from the direction of an election, employers must produce a voter list that now must include available personal email addresses and cell phone numbers for all eligible voters.

By its rule changes, the NLRB has said it intends to make the typical election campaign period last 14 to 20 days—down from the historical average of 38 to 42 days. This shortened schedule is challenging enough for any employer faced with a union petition, and it is virtually unmanageable if the employer is unprepared.

The Fifth Circuit Case

In the recent Texas case, the employers argued that the new election rule improperly precluded employers from contesting bargaining unit and voter eligibility issues in pre-election hearings. Section 9 of the National Labor Relations Act (the “Act”) requires the Board to investigate the representation petition and “provide for an appropriate hearing upon due notice” before an election can be held. The Fifth Circuit sided with the NLRB and concluded that new rule complied with the Act because it gave the hearing officer “authority” to decide whether any issues raised by the parties require a decision before the election, even if no decision is rendered.

The Texas employers also challenged the new rule’s requirement that employers provide employees’ personal information before and after the pre-hearing. The employers argued that this new feature conflicted with federal privacy laws and the Act. Under the prior rule, employers were required only to produce a list of names and home mailing addresses within seven days of the direction of an election. The Fifth Circuit upheld the new NLRB rule and found that requiring disclosure of personal email addresses and cell phone numbers is “rationally connected to the transformative changes in communications technology” and within the Board’s authority.

Finally, the employers argued that the new election rule violated the Act because it shortened the overall pre-election period so drastically as to violate the free speech provisions of the Act, which contemplate a full and fair exchange of information regarding the question of union representation. The Fifth Circuit held that the rule itself was not restrictive of free speech and that regional directors, in setting the election, have authority to take into account “the desires of the parties, which may include their opportunity for meaningful speech about the election.” 

What Should Employers Do Now? 

Most employers are well aware of the need to practice preventive labor relations and to adopt an effective and positive communications style that fits the company.

Some very basic proactive measures include the following:

• Review employee handbooks and personnel policies to determine compliance with the Act. Pursuant to Section 7 of the Act, the NLRB is actively litigating cases against non-union employers over personnel policies that interfere with employees’ rights to engage in “protected concerted activity.” This alleged interference could include overly restrictive policies on topics such as confidentiality, non-disparagement, use of social media, photography and recordings on company property, and similar policies.
• Determine whether the employer has a non-solicitation policy that applies to outside solicitations and is consistently enforced. 
• Assess the bargaining unit to determine the most appropriate unit (if there should ever be a petition) and identify issues related to the unit composition.
• Determine which supervisors meet the requirements for “supervisor” as defined under Section 2 (11) of the Act.
• Train supervisors. Strong and well-trained managers are the key to any effort to avoid or union organizing activity. Especially with the prospect of “ambush” elections, supervisors need to feel confident discussing – at any time – what unions do and do not offer to the company’s employees.
• Emphasize open communication and transparency. This point is fundamental: Employees must believe that their concerns are being heard and that they can address workplace issues within the company without seeking to bring in a third party.