NLRB Election Rules Survive Federal Court Challenge

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By Lawrence E. Dubé

July 30 — The National Labor Relations Board acted within its authority when it adopted changes to its representation case rules that went into effect in April, a federal district court in Washington decided July 29.

Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia said the U.S. Chamber of Commerce and allied groups offered policy objections to the NLRB rules that “may very well be sincere and legitimately based.”

However, granting summary judgment to the board, Jackson said the challengers relied on a “broad attack” that mischaracterized some provisions of the rules and disregarded others.

Jackson said the NLRB conducted “a comprehensive analysis of a multitude of issues” relating to the need for changes and the propriety of the final rule, and she found no basis for overturning the board's action.

Follows Texas Federal Court Ruling 

The board approved the rule changes (RIN 3142-AA08) last December on a 3-2 vote. 

The Senate and House disapproved the NLRB regulatory action (S.J. Res. 8), but President Barack Obama vetoed their Congressional Review Act resolution March 31, allowing the rule changes to go into effect April 14.

The Chamber, joined by the Coalition for a Democratic Workplace, the National Association of Manufacturers, the National Retail Federation and the Society for Human Resource Management, filed its lawsuit Jan. 5, before the NLRB rule changes became effective.

Baker DC LLC, a concrete contractor, filed a separate lawsuit (Baker DC, LLC v. NLRB, D.D.C., No. 1:15-cv-571), which was consolidated with the Chamber case. 

In another lawsuit challenging the NLRB rules, the U.S. District Court for the Western District of Texas June 1 dismissed challenges by the Associated Builders, joined by its Central Texas chapter and the National Federation of Independent Business (Associated Builders & Contractors of Texas, Inc. v. NLRB, 2015 BL 194150, 203 LRRM 3199 (W.D. Tex. 2015)). 

The Texas business groups have appealed the ruling to the U.S. Court of Appeals for the Fifth Circuit, where their brief to the court is presently due by Aug. 10.

Rule Challenges Unclear 

In the case before Jackson, the challengers made a number of claims, including that the NLRB rule changes exceeded the board's statutory authority, violated the First and Fifth Amendment rights of employers, and ran afoul of the Administrative Procedure Act.

Jackson said she “struggled at oral argument” to get the plaintiffs to identify “which provisions of the Final Rule violated which provisions of the NLRA or the Constitution and how.”

However, after considering the briefs and arguments of all the parties, she concluded that the challengers' objections to specific provisions in the rules, as well as their argument that the entire rule was arbitrary and capricious, lacked merit.

Notice and Hearing Provisions Upheld 

The court upheld a rule change requiring an employer served with an election petition to post an NLRB notice within two days. While the business groups argued the mandatory posting violated the NLRA and the U.S. Constitution by compelling an employer to express particular views, Jackson said the notice is “government speech.”

Employers are required to relay the government's message, including statements of NLRA rights and procedures, to employees, but Jackson said posting the government's notice does not preclude an employer from communicating its own view to its workers.

Jackson also rejected arguments that the NLRB rule changes improperly limit the presentation of evidence in pre-election hearings and foreclose parties from raising important issues.

The court said the final rule “simply indicates that consideration of these issues will ‘ordinarily' be deferred until after the election.”

The court said the business groups' facial challenge to the NLRB rule changes required that they show there was no set of circumstances under which the rules could be properly applied, but the NLRB rules leave regional directors with considerable discretion concerning pre-election hearings that undermined a facial challenge to the rules.

No Denial of ‘Appropriate' Hearing 

The NLRA, 29 U.S.C. § 159(c), provides for an “appropriate hearing” in cases where an election petition has been filed and the board has reasonable cause to believe there is a question concerning representation under the statute.

The business groups argued the rule changes violate the act by allowing regional directors to limit the issues and evidence offered in NLRB hearings, but Jackson disagreed.

“Because parties retain the right to petition the Board for review, both pre- and post-election, and because they can refuse to bargain and obtain a hearing on their claims before a federal court of appeals,” Jackson wrote, “the Court does not find that the Final Rule violates parties' due process rights to an ‘appropriate hearing.' ”

Jackson rejected additional challenges to rule provisions requiring parties to file statements of position before pre-election hearings, and the NLRB's requirement that employers provide to parties in board proceedings contact information for eligible voters, including e-mail addresses and phone numbers.

Rule Changes Not Only Aimed at Speedy Elections 

The Chamber and allied groups argued that the NLRB's final rule arbitrarily “promotes speed in holding elections at the expense of all other statutory goals and requirements,” but Jackson wrote that “the argument presupposes that the lone goal of the Final Rule was speedier elections, and that is not the case.”

“Expedition is a valid concern, well within the Board's purview,” she said, “but the Final Rule makes clear that it was aimed not only at increasing the speed and efficiency with which representation elections are carried out, but that it was also designed to increase transparency and uniformity, to ensure more fair and accurate voting, and to adapt the Board's rules to modern technology.”

Concluding that “the Board has offered grounds to show that the issues targeted by the Final Rule were sufficiently tangible to warrant action,” the court granted summary judgment in favor of the NLRB and against the plaintiffs.

The Chamber and allied groups were represented by Morgan, Lewis & Bockius LLP. Baker DC LLC was represented by Littler Mendelson, P.C. National Right to Work Legal Defense Foundation counsel represented the employee-plaintiffs. NLRB attorneys represented the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at