In a move that surprised absolutely nobody, business coalitions challenging the National Labor Relations Board’s controversial “quickie election” rules announced that they will appeal this week’s ruling out of Texas finding that the groups failed to prove that the rule violated both the Administrative Procedure Act and the National Labor Relations Act. [Notice of Appeal]
As discussed in the blogosphere earlier this week, Associated Builders and Contractors of Texas, Inc. and their co-plaintiffs lost their bid to nix the Board’s “quickie election” rules in U.S. District Court. In a short ruling, Judge Robert L. Pitman explained that the challengers could not show that the new rule, on its face, violates the law.
Plaintiffs contended that the rule violated both the NLRA and the APA in myriad ways. They argued that the rule was both arbitrary and capricious, and that it abused agency discretion. The plaintiffs further argued that the rule unlawfully interfered with employer speech, and that it violated their employees’ privacy rights as well.
But unfortunately for the plaintiffs, Judge Pitman determined that they had not established that “no set of circumstances exist[ed]” under which the quickie elections could be lawful. And the ruling further explained that since employers have “almost unfettered ability to rapidly disseminate their election position after an election petition is filed,” the rule could not be found to violate employer speech rights, either.
Interestingly, Judge Pitman’s ruling could reverberate to a separate challenge filed against the quickie election rules in D.C. District Court. Those plaintiffs have challenged the Board’s quickie election rules on similar grounds, and in oral argument, Judge Amy Berman Jackson expressed skepticism to the challengers’ arguments.
And since the plaintiffs in the Texas case have appealed, it is clear that the battle over the quickie election rules is far from over. With challenges going on in multiple Circuits, we may have another Noel Canning style quagmire on our hands that will have to be resolved by the Supreme Court. Keep watching @LRToday for updates on these cases.