Sources: Littler Mendelson P.C., San Francisco; CP staff
A federal district court has dismissed one of two lawsuits filed earlier this year seeking to invalidate the National Labor Relations Board’s Representation-Case Procedures, dubbed by critics as the “ambush” election rule as it facilitates an accelerated petition-to-election timetable for unions seeking to represent their bargaining unit targets.
A shareholder with Littler, the top labor law practice representing management, Michael Lotito notes that the court in Associated Builders and Contractors of Texas, Inc., et al v. NLRB a) ruled against the NLRB on the issue of “ripeness,” finding that enforcement of the rule is sufficiently “likely, concrete and imminent” to allow the court to rule on its merits; and, b) upheld the merits of the new rule and granted final judgment in favor of NLRB.
Plaintiffs challenged 10 Representation-Case Procedures aspects, arguing the rule should be invalidated under the National Labor Relations Act (NLRA) and Administrative Procedure Act (APA) because it: (1) exceeds the Board’s statutory authority by impermissibly restricting employers’ ability to fairly litigate issues of unit appropriateness and voter eligibility in petitioned-for bargaining units; (2) violates the NLRA by compelling the invasion of employee privacy through the disclosure of personal information; (3) violates the NLRA by interfering with protected speech during union election campaigns; and, (4) is arbitrary and capricious and an abuse of agency discretion.
The district court judge held that the NLRB acted within its statutory authority and with adequate justification under the APA. The decision will now be appealed to the U.S. Court of Appeals for the Fifth Circuit, possibly setting the stage for the case to be heard before the U.S. Supreme Court.