By:  Kyllan B.Kershaw, Esq.

Seyfarth Synopsis: The Fifth Circuit upheld the NLRB’s expedited union election rules on Friday, rejecting an appeal from construction-industry employers and small businesses

The U.S. Court of Appeals for the Fifth Circuit upheld the National Labor Relations Board’s expedited election rules, rejecting an appeal by the Associated Builders and Contractors of Texas (“ABC”) and the Texas arm of the National Federation of Independent Business. The appeal followed a lower court decision in June 2015 declaring the rule valid.

The election rules at issue took effect in April 2015 and are designed to expedite the union election process and delay employer challenges to voter eligibility issues until after an election.  The expedited election rules also expand requirements for disclosure of employee contact information to unions.

In its appeal to the Fifth Circuit, ABC and others argued that the election rules exceed the Board’s statutory authority and subject employees to increased risks of identity theft and privacy violations.  Upholding the rules, a three-judge panel rejected these arguments, finding that the rules did not violate the National Labor Relations Act or the Administrative Procedure Act and noting that the challengers did not substantiate claims that disclosure of an email address and cellphone number threatened greater harm to employees than the disclosure of a home address.  The Fifth Circuit panel further commented that ABC and others failed to identify any federal law restricting the disclosure of employee information to unions by employers.

While this is not the first time a federal court has rejected a challenge to the Board’s expedited election rules, the Fifth Circuit’s decision is significant given its reputation as a relatively conservative court and forecasts that future challenges to these rules are also unlikely to succeed.