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Conservative 5th Circuit Court Upholds NLRB “Quickie” Election Rule; ABC Takes Another Loss

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A U.S. appeals court has upheld the National Labor Relations Board (NLRB) rule which speeds up the union election process. The Fifth Circuit Court of Appeals ruled that the NLRB did not exceed its authority in issuing the rule that allows employees to vote on union representation 11 days after a petition for representation is filed.  

As Reuters notes, this particular court is widely considered to be among the most conservative in the nation and is often used to mount challenges against Obama administration policies.

The election rule, labeled the “quickie” or “ambush” election rule by its detractors, was being challenged by the Associated Builders and Contractors (ABC) and the National Federation of Independent Business (NFIB).  The anti-union groups argue that it limits an employer’s ability to contest voter eligibility and pre-election hearings. The irony is that pre-election tampering through tactics such as captive audience meetings was one of the primary reasons the rule was put in place.

The groups also argue that sections of the rule violate federal privacy laws. The Fifth Circuit did not agree.

In the opinion of the court, Judge Edith Brown Clement wrote:

”The board acted rationally and in furtherance of its congressional mandate in adopting the rule.

Here, the board identified evidence that elections were being unnecessarily delayed by litigation and that certain rules had become outdated as a result of changes in technology.

It conducted an exhaustive and lengthy review of the issues, evidence and testimony, responded to contrary arguments, and offered factual and legal support for its final conclusions.”

The rule was adopted in April of 2015 and has shortened the median duration between petition and election from 38 days to just under two weeks. Companies can no longer bring legal challenges against the way a campaign is being conducted until after the election has taken place. Previously, companies used this tactic to delay elections and subject their employees to anti-union messaging.  


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