Amicus: Ambush Elections Violet Employer, Employee Rights

Issue Currently Before The Fifth Circuit Court Of Appeals

In an amicus brief submitted to the United States Court of Appeals for the Fifth Circuit in the case Associated Building and Contractors of Texas Inc., et al. v. National Labor Relations Board, retailers explained the real world harm to workers and employers that the National Labor Relations Board's (NLRB) new union election regulations present when applied in the retail context. The brief, which was filed by the Retail Litigation Center, thus illustrates the legal bases upon which the court should invalidate the rules.

The case challenges regulations issued by the Board in December 2014 that substantially changed union election procedures. Referred to as "the ambush election rules," the regulations shorten the amount of time before an election is held thereby limiting employees' access to basic information essential to making an informed decision. Under the new rules, critical threshold issues, such as who is eligible to vote and who will be included or excluded from a potential bargaining unit, may not be resolved until after a union election.

"The Board's new union election rules deprive employees of fair access to critical information necessary to an informed vote and deny employers the appropriate hearing guaranteed by the law," said Deborah White, President of the Retail Litigation Center."Prioritizing the speed of the election ahead of a fully informed electorate jeopardizes the legitimacy of the election."

According to the brief:

"In any election, the two most important questions are (a) who gets to vote, and (b) what they are voting on.  In the union election context, the latter question includes voter knowledge of who will be included in the bargaining unit with them and who will not.  For the Board majority to decide that these issues are somehow less important than the speed with which the vote occurs suggests that, like Alice, they have somehow fallen through a rabbit hole into an alternate universe where what is important is unimportant, and vice versa."

The brief concludes:

"In sum, the overall goal and impact of the New Rules to shorten the time period between petition and election adversely affects the ability of employees to obtain information from their employers as to the pros and cons of unionization –information that may be critical to an employee's balanced, fully informed view prior to her vote. By elevating speed above all other concerns necessary to a free, fair, and neutral election, the Board exceeded its authority under the Act. Even if the Board was acting within its authority, its decision making is inconsistent with the purposes of the Act and failed to consider various important aspects of the problem. Accordingly, the Court should invalidate the New Rules under Section 706 of the Administrative Procedure Act.".


The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry.  The RLC, whose members include some of the country's largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.

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