- Perry, James B.
- Industry Alerts
An employer-led challenge to the National Labor Relations Board’s 2015 changes to union election rules has been rejected by the 5th U.S. Circuit Court of Appeals.
The rejection means that the controversial rule changes – which commentators have called the "quickie" or "ambush" election rules because they speed up the process of union elections – live on.
On Friday, June 10, 2016, a three judge panel of the 5th Circuit rejected an appeal by a group of employers to invalidate the NLRB’s 2015 election rules. This decision refused to reverse the summary judgment granted to the NLRB by District Court Judge Robert L. Pitman.
The rules were adopted April 15, 2015 by a 3-2 majority of the NLRB members, along party lines. The new rules eliminated most of the reasons for pre-election hearings, and required employers to provide information to petitioning unions concerning the employees that it considers eligible voters, including their names, positions, shifts, work locations, email addresses, and cell phone numbers, before the parties reach an election agreement or an election is ordered.
The participants in the case are noteworthy. District Judge Pitman, who granted the original Summary Judgment, was appointed by President Obama. The employers were led by the Associated Builders and Contractors of Texas, Inc. The three Judge panel of the 5th Circuit consisted of Circuit Judges Edith Brown Clement and Catharina Haynes, both appointees of President George W. Bush, and District Court Judge Marina Garcia Marmolejo, an appointee of President Obama.
The 5th Circuit opinion, drafted by Judge Clement, illustrated the difficulty faced by litigants in challenging a rule promulgated by an administrative agency. The standard of review is highly deferential to the agency. Judge Clement’s decision pointed out that, unless Congress has directly spoken to the issue in question, the Court should defer to the agency’s reasonable interpretation of the statute. She explained that under the Administrative Procedures Act, a court can only set aside an agency rule or regulation if it is arbitrary, capricious, an abuse of discretion, or otherwise not supported in the law or by substantial evidence, on the whole record.
These new NLRB rules illustrate the power and authority granted to administrative agencies and emphasize that political elections matter. Employers should prepare to operate under the new rules. This means that employers who wish to communicate their opinions on unionization to their workforce should consider strategies to do that before a petition is filed. Also, each non-union employer should review its workforce to determine who has supervisory authority, and whether specific groups of employees should be combined with others in an appropriate voting unit. Our Labor and Employment Group has significant experience in this area and can assist with these issues.
This client alert is published by Dickinson Wright PLLC to inform our clients and friends of important developments in the field of labor and employment law. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in here.
FOR MORE INFORMATION CONTACT:
James B. Perry is a member in Dickinson Wright’s Detroit office. He can be reached at 313.223.3096 or firstname.lastname@example.org.
If you would like a printable version of this labor and employment client alert, click here.
- June 13, 2018 Media Mentions Lawyer Tracy Bergeron Lucha Quoted in the Law Times Article “Workplace Restorations Can Help After Investigations”
- May 23, 2018 Conferences MICPA Conference- Employment Law: It Affects Family Companies Too on May 23, 2018
- May 2018 Industry Alerts The Times They Are A-Changin’: More States and Cities Move Ahead of the Courts by Prohibiting the Use of Prior Salary Information in Hiring
- April 19, 2018 - April 20, 2018 Conferences 43rd Annual Labor & Employment Law Institute on April 19 - 20, 2018
- April 6, 2018 Media Mentions Lawyer David Houston Co-Authored The Michigan Lawyers Weekly Article “Do Labor Arbitrators’ Scorecards Threaten the System?”
- March 27, 2018 Webinars Can You Accommodate My Tattooed Ferret? Approaching Disability and Religious Accommodations in the Millennial Age Webinar on March 27, 2018
- March 16, 2018 Seminars Sunrise Seminar - #You Too Can Do More to Address and Prevent Sexual Harassment in the Workplace on March 16, 2018
- March 2018 Industry Alerts Michigan Court of Appeals Offers Guidance to Employers in Documenting Reasons for Hiring, Promotions
- February 28, 2018 Industry Alerts One Minute You’re In, the Next, You’re Out: NLRB Vacates the Short-Lived Hy-Brand Decision and Reinstates the Browning-Ferris’ Joint Employer Standard