Court Rejects ABC’s Challenge to Ambush Rule
On June 10, 2016, the 5th Circuit Court of Appeals issued a decision rejecting ABC’s challenge to the National Labor Relations Board’s (NLRB) controversial “ambush” election final rule. ABC General Counsel Maury Baskin of Littler Mendelson P.C., Washington, D.C., argued the case on behalf of ABC of Texas, the Central Texas Chapter of ABC and the National Federation of Independent Business (NFIB) Texas on March 3 in New Orleans.
“ABC is disappointed with the decision,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “By affording excessive discretion to Regional Directors, the NLRB made it very difficult to mount a successful facial challenge to the new rule. However, we are exploring our appeal options and, depending on how that discretion is exercised, an “as-applied” challenge on a case-by-case basis may also successful.”
“ABC is prepared to assist members challenging this failed NLRB policy, which is designed to suppress employers’ voices during union organizing campaigns. That is unfair not only to employers but also to employees who deserve the opportunity to hear from both sides and make a well-informed decision on whether or not to join a labor union,” said Brubeck.
The rule, also known as Representation-Case Procedures, went into effect on April 14, 2015, and overhauls the procedures for union representation by drastically shortening the amount of time between when a union files a representation petition and an election takes place. The rule resulted in a union election in just eight days and decreased the average time to election to 28 days, compared to an average of 38 days prior to the rule being finalized. In addition, the rule shortens the amount of time an employer is allotted to provide a list of eligible voters and adds to the amount of personal contact information that must be disclosed to unions.
On Jan. 13, 2015, ABC and NFIB Texas filed suit in the Western District of Texas federal court challenging the new election rules. The court upheld the rule on June 1, 2015, and ABC and NFIB appealed the decision to the 5th Circuit Court of Appeals.
ABC has consistently opposed the NLRB’s ambush election rule. ABC along with more than 1,200 ABC members filed comments in April 2014 requesting the NLRB withdraw the controversial rule. The ABC-led Coalition for a Democratic Workplace also filed comments and was joined by more than 140 local organizations, including more than 40 ABC chapters. Following the issuance of the final rule, ABC created a rapid response toolkit (login required) to help association members deal with union organizing. In addition, ABC distributed more than 6,000 pocket guides to more than 50 chapters for distribution to membership.