Joel Dillard, P.A.

Representing Mississippi Workers



NLRB Election Rule Wins in Texas District Court

The NLRB won big in Texas today, with a district court decision by Judge Pitman that awards a complete victory. Even where the Board lost, it won.

The case involves the NLRB's new election rules, which we've talked about before. Business lobbyist groups had sued the Board, claiming that the new rules were illegal primarily because they limited pre-election litigation and sped up the election too much. The Board had argued that parts of the challenge were premature because they involved speculation about how the rule would work in practice, speculation that was unfounded.

The first thing the judge decided was that the case was not premature, so the Board lost that argument - but this allowed the judge to proceed to rule in favor of the Board on every other argument in this case - arguments that would not have been reached had the case been thrown out as premature, so even this loss was really a win for the Board.

In addition, in rejecting the ripeness argument the Judge effectively limited the business lobbyists arguments to specific legal and statutory concerns. In other words, the Judge only allowed the case to go forward because he first stripped out all the speculative arguments from the briefing. This was noted repeatedly throughout, and significantly simplified the issues.

The heart of the decision was the interpretation of the term appropriate hearing in the statute. Did this term require litigation of any particular issues? The Court weighed a clear statement from the Supreme Court that the term was not a limiting one, against a bit of belated and isolated legislative history, and found that the Board's approach was the correct one.

The judge also noted that the rule was not absolute, but gave Regional Directors a great deal of flexibility and discretion. This too was a theme that recurred throughout the decision, in the discussion of employer speech and other issues.

On the final page, the Judge said:

A review of the decision of the Board makes clear the New Rule was put into place only after an exhaustive and lengthy process, involving presentation of evidence and testimony by numerous parties. The Board's opinion carefully reviews the evidence and arguments presented, discusses the reasoning for accepting certain testimony and weighing some evidence over other evidence, and explaining how the final conclusions are factually and legally supported.

This makes me very happy to read. This is the case that has taken up the last four years of my working life, and I cannot tell you how welcome this news is. Of course, it isn't over yet by any means. The case will be appealed to the Fifth Circuit, and there are also pending proceedings in district court in D.C. But this is certainly a strong start.

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