Joel Dillard & Associates

Representing Working People

NLRB's Election Procedure Rule wins decisive victory in Fifth Circuit

It's a funny thing about the practice of law: when you get involved in something big, it can consume your working life completely, and everything you've devoted yourself to comes to hinge on a single, decisive moment.

For me, one such ultimate moment came this week, when the Fifth Circuit issued its decision in the NLRB's Election Procedure Rule. This rule has, in one form or another, consumed the greater part of my working life. You can see a brief run down of the rule by clicking here, and a discussion of my involvement in the rule by clicking here.

And I'm not the only one. As hard as I and a handful of my colleagues at the Board fought for this rule, an army of corporate lawyers fought tooth and nail against it. Through more than five years of fierce dispute, including four days of hearings, the submission of some 75,000 comments, who knows how much Congressional lobbying, and three separate lawsuits, I'd guess that corporate special interests probably spent some $100 Million all told opposing the rule. Why? Who knows, really. Much of the effort was plainly wasted - or even counterproductive - such as the Chambers 2012 litigation, which ultimately resulted in a more aggressive rule.

And now the rule has received what is likely to be its most decisive vindication. A politically hostile panel of the Fifth Circuit just affirmed the rule in no uncertain terms. At this point, it looks like it's all over but the shouting, and the good guys won.

Judge Edith Brown Clement's decision is emphatic. First, the Court described the rule in its most unfavorable terms, using language lifted from the corporate lawyers' briefs. Then the Court held that the rule was valid, embracing the Board's rationale for upholding the rule. The result is a vindication, not only of what the rule actually does, but of what even the rule's fiercest opponents pretend that it does: even if the rule could result in 11 day elections as the opponents claim, it would still be valid.

This shouldn't come as a surprise - the caselaw and authorities were extremely one-sided, with the corporations relying almost solely on out-of-context snippets of legislative history, and the Board on the text and actual history of the statute - and yet in the age of an increasingly partisan judiciary, it does. Let this be a reminder that law is not the same as politics, and even a very politically salient argument to a very politically sympathetic judge can and will fail when the law is set inflexibly against it.

Read the Fifth Circuit decision by clicking here.

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