Assoc Builders and Contractors v. NLRB , 826 F.3d 215 ( 2016 )

Case: 15-50497 Document: 00513542636 Page: 1 Date Filed: 06/10/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-50497 June 10, 2016
Lyle W. Cayce
ASSOCIATED BUILDERS AND CONTRACTORS OF TEXAS, Clerk
INCORPORATED; ASSOCIATED BUILDERS AND CONTRACTORS,
INCORPORATED CENTRAL TEXAS CHAPTER; NATIONAL
FEDERATION OF INDEPENDENT BUSINESS/TEXAS,
Plaintiffs - Appellants
v.
NATIONAL LABOR RELATIONS BOARD,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
Before CLEMENT and HAYNES, Circuit Judges, and GARCIA
MARMOLEJO, District Court.*
EDITH BROWN CLEMENT, Circuit Judge:
Appellants, Associated Builders and Contractors of Texas, Inc., its
chapter member, the Central Texas Chapter of ABC of Texas, and the National
Federal of Independent Business/Texas (collectively, the “ABC entities”), are
Texas-based trade and advocacy associations that represent construction
employers and small business owners. The ABC entities brought a facial
* District Judge of the Southern District of Texas, sitting by designation.
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challenge to enjoin enforcement of a final rule issued by the National Labor
Relations Board (the “Board” or “NLRB”) that modifies procedures relating to
union representation elections. Because the new rule, on its face, does not
violate the National Labor Relations Act or the Administrative Procedure Act,
we AFFIRM.
I.
The challenged NLRB rule amended the procedures for determining
whether a majority of employees wish to be represented by a labor organization
for purposes of collective bargaining. 1 See Representation—Case Procedures,
79 Fed. Reg. 74308–10 (Dec. 15, 2014). Intended to decrease the time preceding
union elections, the rule allows for employees to take a vote on union
representation as soon as eleven days after a petition for representation is
filed. Among other changes, the rule defers employer challenges to voter
eligibility issues until after an election is held; removes the standard twenty-
five day delay that normally occurs between the time a regional director directs
an election and the actual election; and requires expanded disclosure of
employee contact information.
Before the rule became effective, the ABC entities filed this action,
arguing that the rule exceeds the Board’s statutory authority under the
National Labor Relations Act (“the Act” or “NLRA”) and violates the
Administrative Procedure Act (“APA”). The ABC entities, in a motion for
summary judgment, requested that the district court vacate the rule changes
1 A previous version of this rule, which enacted similar changes to the representation
election process, was held invalid on the ground that the NLRB acted without the requisite
quorum. Chamber of Commerce of U.S. v. NLRB, 879 F. Supp. 2d 18 (D.D.C. 2012). Although
the rule was challenged on “myriad grounds,” the court did “not reach—and express[ed] no
opinion on—Plaintiffs’ other procedural and substantive challenges to the rule.” Id. at 30.
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as facially invalid and enjoin enforcement. 2 In response, the Board filed a
combined partial motion to dismiss and cross-motion for summary judgment,
contending that deference is owed to decisions of the Board and that the rule
changes are reasonable and consistent with the NLRA and the APA. The
district court ruled in favor of the Board, and this appeal followed. 3
II.
We review de novo a district court’s grant of summary judgment,
“applying the same standard as the district court.” 10 Ring Precision, Inc. v.
Jones, 722 F.3d 711, 717 (5th Cir. 2013). We analyze an agency’s interpretation
of its authorizing statute using the two-step procedure set forth in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
First, we ask “whether Congress has directly spoken to the precise question at
issue.” Id. at 842. If it has, “that is the end of the matter,” and we “must give
effect to the unambiguously expressed intent of Congress.” Id. at 842–43. If it
has not, we defer to the agency’s reasonable interpretations of the statute. See
NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 713 (2001).
The APA also authorizes us to set aside agency actions if “arbitrary,
capricious, an abuse of discretion” or otherwise “not in accordance with law, or
unsupported by substantial evidence on the record taken as a whole.” Tex.
Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir. 2010); see 5 U.S.C. §
2 On appeal, the ABC entities make several passing references to “as-applied
challenges” to the new rule. Their complaint, however, states that it presents a facial
challenge to the rule. The ABC entities filed their complaint on January 13, 2015, months
before the rule became effective. Based on this, and the language of their complaint, the
district court determined that they had brought a facial challenge to the rule. The ABC
entities cannot raise an as-applied challenge now. See Dunn-McCampbell Royalty Interest,
Inc. v. Nat’l Park Serv., 112 F.3d 1283, 1288 (5th Cir. 1997). We express no opinion on the
merits of any such as-applied challenge.
3 A parallel challenge to the final rule in the United States District Court for the
District of Columbia has also been resolved in the Board’s favor. Chamber of Commerce of
U.S. v. NLRB, No. 15-0009, 2015 WL 4572948 (D.D.C. July 29, 2015).
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706(2). Our task is to determine whether the agency examined the pertinent
evidence, considered the relevant factors, and articulated a “reasonable
explanation for how it reached its decision.” Tex. Office of Pub. Util. Counsel v.
FCC, 183 F.3d 393, 410 (5th Cir. 1999); see Motor Vehicles Mfrs. Ass’n of U.S.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). This standard is
highly deferential; we apply a presumption of validity. Tex. Clinical Labs, Inc.,
612 F.3d at 775. We may not substitute our judgment for that of the agency.
See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009).
Because the ABC entities bring a facial challenge, they “must establish
that no set of circumstances exists under which the [Rule] would be valid.”
Center for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006)
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)); see Sherley v.
Sebelius, 644 F.3d 388, 397 (D.C. Cir. 2011) (applying the “no set of
circumstances” test to a facial statutory challenge); Scherer v. U.S. Forest
Service, 653 F.3d 1241, 1243 (10th Cir. 2011) (“To prevail in this and any facial
challenge to an agency’s regulation, the plaintiffs must show that there is ‘no
set of circumstances’ in which the challenged regulation might be applied
consistent with the agency’s statutory authority.” (quoting Reno v. Flores, 507
U.S. 292, 301 (1993))).
III.
The NLRA grants employees the right “to bargain collectively through
representatives of their own choosing . . . and to . . . refrain from . . . such
activities.” 29 U.S.C. § 157. Section 9 of the Act gives the Board authority to
resolve questions of representation, and sets forth the basic steps for that
process. When a petition for representation is filed, the Board is required to
investigate the petition and “provide for an appropriate hearing upon due
notice” before the election is held. Id. § 159(c)(1). The hearing “may be
conducted by an officer or employee of the regional office, who shall not make
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any recommendation with respect thereto.” Id. A union may represent
employees in collective bargaining if the union is “designated or selected for
the purposes of collective bargaining by the majority of the employees in a unit
appropriate for such purposes.” Id. § 159(a). In each case, “the Board shall
decide” the “unit appropriate for the purposes of collective bargaining” in order
to “assure to employees the fullest freedom in exercising the rights guaranteed
by [the Act].” Id. § 159(b).
Aside from these general requirements, the statute says little about
specific procedures for processing election petitions. The Board has authority
to proscribe rules for processing such petitions, 29 U.S.C. §§ 156, 159(c)(1), and
has repeatedly amended these procedures, usually without notice and
comment. 79 Fed. Reg. 74310. Here, the final rule followed an extensive
comment period, totaling 141 days and four days of hearings. Id. at 74,311.
Overall, the Board implemented twenty-five amendments to the procedures for
processing representation petitions. 79 Fed. Reg. 74,308–10. For purposes of
this appeal, the provisions challenged by the ABC entities fall into three
categories: (1) rule changes that limit the scope of the pre-election hearing,
particularly the deferral of individual voter eligibility issues; (2) rule changes
that require employers to disclose to unions personal-employee information;
and (3) rule changes that cumulatively shorten the time period between
petition and election to less than thirty days.
A.
The ABC entities contend that the rule exceeds the Board’s authority
under Section 9 of the Act by allowing regional directors to preclude employers
from contesting voter eligibility issues in pre-election hearings. The Board
argues that the Act’s requirement that the Board hold an “appropriate
hearing” on questions of representation does not demand pre-election litigation
of all voter-eligibility issues. The Board has the better argument.
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Section 9 of the NLRA states that “[t]he Board shall decide in each case
. . . the unit appropriate for the purposes of collective bargaining.” 29 U.S.C. §
159(b). The Act mandates that the Board investigate representation petitions
“and if it has reasonable cause to believe that a question of representation
affecting commerce exists shall provide for an appropriate hearing upon due
notice.” Id. § 159(c)(1).
Prior versions of the regulations neither expressly stated the purpose of
the hearing nor specifically limited the evidence that could be introduced. See
29 C.F.R. § 102.66(a) (replaced effective April 14, 2015); 79 Fed Reg. at 74,309
(stating that prior rules “required . . . litigation of any voter eligibility issues
that any party wished to litigate, even if the regional director was not going to
be deciding that question, and even if the particular voter eligibility question
was not necessary to resolving the existence of a question of representation”).
In the new rule, the Board addressed the administration of the pre-election
hearing and emphasized that the purpose of the hearing “under Section 9(c) of
the [NLRA] is to determine if a question of representation exists.” 29 C.F.R. §
102.64(a). 4 Employers are now required to submit a written “Statement of
Position” that identifies any basis for contending that the proposed bargaining
unit is inappropriate, any challenges to voter eligibility, and “all other issues
the employer intends to raise at the hearing.” 29 C.F.R. § 102.63(b)(1)(i). In
accordance with the rule’s purpose, however, hearing officers and regional
directors may decline to hear evidence on issues “that need not be decided
before the election,” including issues of individuals’ eligibility to vote. 79 Fed.
Reg. 74,384; see also C.F.R. § 102.64(a) (“Disputes concerning individuals’
4A question of representation exists “if a proper petition has been filed concerning a
unit appropriate for the purpose of collective bargaining or concerning a unit in which an
individual or labor organization has been certified or is being currently recognized by the
employer as the bargaining representative.” 29 C.F.R. § 102.64(a).
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eligibility to vote or inclusion in an appropriate unit ordinarily need not be
litigated or resolved before an election is conducted.”). But even if a voter’s
eligibility or inclusion is not contested at the pre-election hearing, a party may
later challenge the eligibility of any voter. Id. § 102.66(d).
Objecting to the new provisions, the ABC entities argue that these rule
changes impermissibly restrict the scope of the pre-election hearing,
particularly by limiting the right of employers to contest issues of voter
eligibility. Relying on the legislative history of the Taft-Hartley amendments
to the NLRA and remarks of Senator Taft, 5 they maintain that the “function
of hearings in representation cases [is] to determine whether an election may
be properly held at the time, and if so, to decide questions of unit and eligibility
to vote.” 6 In other words, the ABC entities argue that the legislative history
mandates that employers be allowed to contest all issues of unit
appropriateness and voter eligibility at pre-election hearings. By
impermissibly preventing employers from litigating these issues at the
hearings, the ABC entities argue, the rule violates the purpose of Section 9 and
therefore is an unreasonable interpretation of the statute.
But this reading of the rule and the legislative history is unpersuasive.
The actual language of the rule neither “precludes” nor “prevents” the
5 The ABC entities cite, in support of this point, a single sentence by Senator Taft
contained in a supplemental analysis produced after the Act was passed. But see Chrysler
Corp. v. Brown, 441 U.S. 281, 311 (1979) (finding that “[t]he remarks of a single legislator,
even the sponsor, are not controlling in analyzing legislative history”).
6 To this point, the ABC entities cite earlier Board decisions, including Barre-National,
Inc., 316 N.L.R.B. 877, 878 n.9 (1995), which held that Section 9(c) entitled employers to
contest individual voter eligibility in a pre-election hearing. The Board contends, in response,
that in making the present rule change it explicitly overruled Barre-National and notes that
Barre-National failed to analyze the relevant statutory language and legislative history. See
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 787 (1990) (noting that “a Board rule is entitled to deference
even if it represents a departure from the Board’s prior policy” as long as it is “rational and
consistent with the Act”).
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presentation of evidence regarding voter eligibility. The rule simply indicates
that “[d]isputes concerning individuals’ eligibility to vote or inclusion in an
appropriate unit ordinarily need not be litigated or resolved before an election
is conducted.” 29 C.F.R. § 102.64(a) (emphasis added); see 79 Fed. Reg. at
74,390 (explaining that the Board “expect[s] regional directors to permit
litigation of, and to resolve, [individual eligibility or inclusion] questions when
they might significantly change the size or character of the unit”). The rule
does not speak to the inclusion of groups or classifications of employees; it
provides only that disputes concerning “individual’s” eligibility or inclusion
will be deferred. 29 C.F.R. § 102.64(a). Regional directors are provided the
discretion to defer consideration of individual voter eligibility. The rule neither
eliminates the possibility that a hearing officer could address these issues at
an earlier stage nor prohibits an employer from ever raising such issues. See
29 C.F.R. § 102.66(d).
The ABC entities fail to identify any statutory language or legislative
history that requires litigation of all voter eligibility at the pre-election
hearing. The statute does not demand a hearing on all issues affecting the
election, or even all substantial issues affecting the election. Section 9 specifies
that the purpose of the pre-election hearing is to determine whether a question
of representation exists, which is a different inquiry from the question of which
specific individuals will vote in the ensuing election. The ordinary meaning of
the statutory language cannot support the ABC entities’ construction. See
Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994) (explaining that courts
do “not resort to legislative history to cloud a statutory text that is clear”).
In support of its argument that the rule conforms to the statutory text,
the Board points to Inland Empire District Council, Lumber & Sawmill
Workers Union v. Millis, 325 U.S. 697, 706 (1945). The Supreme Court, in
Inland Empire, interpreted Section 9 to grant the Board wide discretion in
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devising the procedures employed in deciding whether a question of
representation exists. The Court explained that the phrase “appropriate
hearing upon due notice” is deliberately expansive and noted that Congress
intended to “confer[] broad discretion upon the Board as to the hearing which
[Section] 9(c) required before certification.” Id. at 708; see NLRB v. A.J. Tower
Co., 329 U.S. 324, 330 (1946) (“Congress has entrusted the Board with a wide
degree of discretion in establishing the procedure and safeguards necessary to
insure the fair and free choice of bargaining representatives by employees.”).
The ABC entities counter that Inland Empire preceded the Taft-Hartley
amendments, which “fundamentally rewrote the entire section of the Act in
which the hearing requirement appears.” The “appropriate hearing” language,
however, remained the same pre- and post-amendment. In the absence of any
change to the phrase, the Court’s interpretation remains controlling. Bragdon
v. Abbott, 524 U.S. 624, 645 (1998); see also Firstar Bank, N.A. v. Faul, 253
F.3d 982, 988 (7th Cir. 2001) (“If a phrase or section of a law is clarified through
judicial construction, and the law is amended but retains that same phrase or
section, then Congress presumably intended for the language in the new law
to have the same meaning as the old.”).
Moreover, because this is a facial challenge, the ABC entities must
demonstrate that the provisions would not be valid under any set of
circumstances. Contrary to the ABC entities’ contention, the Board’s rule
provides regional directors discretion to determine voter eligibility issues in
pre-election hearings. Regional directors can postpone the time for submitting
a Statement of Position on a showing of either special or extraordinary
circumstances. 29 C.F.R. § 102.63(b)(1). And if they determine that certain
record evidence is necessary, regional directors can “direct the receipt of
evidence concerning any issue.” Id. § 102.66(b). Because the rule changes to
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the pre-election hearing did not exceed the bounds of the Board’s statutory
authority under the NLRA, we affirm.
B.
The ABC entities also challenge provisions of the rule that require
disclosure of personal-employee information both before and after the pre-
election hearing. They argue that the provisions conflict with federal privacy
law and thus constitute an impermissible interpretation of the NLRA. And
they assert that the broader disclosure requirements are an arbitrary and
capricious invasion of the privacy rights of employees in violation of the APA.
The Board maintains that the disclosures are consistent with the purpose of
the NLRA, and asserts that it carefully weighed the privacy rights of
employees in accordance with the requirements of the APA. Because the NLRA
does not prohibit these disclosures and because the Board offers a rational
explanation for its decision, we defer to it.
The NLRA directs the Board to decide the “unit appropriate for the
purposes of collective bargaining” so as to “assure to employees the fullest
freedom in exercising the rights guaranteed by [the Act].” 29 U.S.C. § 159(b).
Employees are also granted the “right” to “refrain from” engaging in union
activity. Id. § 157. In its Excelsior Underwear, Inc. decision, the Board first
required an employer to disclose the names and addresses of employees eligible
to vote in representation elections. 156 N.L.R.B. 1236 (1966). The Board found
that a lack of information in a representation election impedes employee’s
exercise of choice and determined that providing employee’s personal
information maximizes the “likelihood that all the voters will be exposed to the
arguments for, as well as against, union representation.” Id. at 1240–41.
Upholding the validity of the disclosure rule, the Supreme Court endorsed this
rational in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 (1969) (“The
disclosure requirement furthers this objective [to ensure the fair and free
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choice of bargaining representatives] by encouraging an informed employee
electorate and by allowing unions the right of access to employees that
management already possesses.”).
Here, the new disclosure provisions expand Excelsior Underwear by
requiring two separate disclosures of employee information. First, within two
days of a direction of election, employers must produce a voter list that contains
“the full names, work locations, shifts, job classifications, and contact
information (including home addresses, available personal email addresses,
and available home and personal cellular (‘cell’) telephone numbers) of all
eligible voters.” 29 C.F.R. § 102.67(l). Employers must disclose this information
about all employees who are deemed to be part of an appropriate bargaining
unit, as well as those employees whose status is not yet determined. Id. §§
102.62(d) & 102.67(l). Under the prior rule, employers were required only to
produce a list of names and addresses within seven days of the direction of an
election. Excelsior Underwear, 156 N.L.R.B. at 1239–40. Second, employers
must disclose the names and job duties of employees to a petitioning union
before any determination that the petition is supported by a sufficient showing
of interest to proceed to an election. Id. § 102.63(b). Notably, however, before
disclosing employee information to a union, the regional director must find that
there is “reasonable cause to believe” that a question of representation exists.
29 C.F.R. § 102.63(a)(1).
1.
The ABC entities assert that these requirements conflict with federal
laws that protect employee privacy. They suggest that federal law has moved
away from Excelsior Underwear’s justification for disclosure and towards
increasing privacy protections, citing, as support, the Privacy Act, the privacy
exemption to the Freedom of Information Act, the Telemarketing and
Consumer Fraud and Abuse Prevention Act, and the Controlling the Assault
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of Non-Solicited Pornography and Marketing Act. And they note generally that
the disclosure requirements are “at odds” with congressional intent to “limit
the number of intrusions into individual privacy.” They fail, however, to
identify any federal law that restricts the disclosure of employee information
to unions by employers. They similarly fail to note any change in circumstances
that would undermine the Board’s concern for encouraging an informed
employee electorate by allowing unions the right of access to employees. See
Wyman-Gordon Co., 394 U.S. at 767 (concluding that the Board was within its
authority to order disclosure of employee information). Because the disclosure
requirements reasonably further this valid objective, the rule change does not
violate the NLRA.
2.
The ABC entities also contend that the disclosure provisions are
arbitrary and capricious under the APA because the rule disregards employees’
privacy concerns, exposes employees to union intimidation and harassment,
enables union misuse of the voter list, and imposes a substantial burden on
employers. They insist that employees’ privacy rights “should outweigh the
desire of unions to use the latest technology to facilitate their organizing
efforts.” But on review of agency decisions under the arbitrary and capricious
standard, we cannot substitute our judgment or preferences for that of the
agency. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). To
affirm an agency’s action, we need only find a rational explanation for how the
Board reached its decision. See Tex. Office of Pub. Util. Counsel v. FCC, 183
F.3d 393, 410 (5th Cir. 1999).
The rule changes adopted by the Board were “intended to better advance
the two objectives articulated by the Board in Excelsior”; namely, to ensure fair
and free choice by maximizing voter exposure to nonemployer party arguments
and to resolve questions of representation by facilitating knowledge of voters’
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identities. 74 Fed. Reg. at 74,335. As an initial matter, the ABC entities
contend that the disclosure requirements place an undue, substantial burden
on employers. In adopting the rule, the Board considered comments that the
two-day turnaround was impractical and unduly burdensome. 79 Fed. Reg.
74,353. The Board concluded, however, that “advances in recordkeeping and
retrieval technology” warranted reducing the time period for production of the
voter list. Id. Noting that federal employment law already requires businesses
to maintain employee records, the Board also pointed out that the regional
director may “direct a due date for the voter list beyond two days in
extraordinary circumstances.” Id. at 74,354. Because the rule accords such
deference to the regional director, the ABC entities’ facial challenge to the
turnaround time fails. 7
The ABC entities next charge that disclosure of personal information
provides increased opportunity for union abuse and misconduct. But the
language of the rule accounts for that concern, mandating that the parties
“shall not use the [voter] list for purposes other than representation
proceeding, Board proceedings arising from it, and related matters.” 29 C.F.R.
§§ 102.62(d) & 102.67(l); see also 79 Fed. Reg. 74,358 (listing when employees’
personal information may be used and cautioning that the information may
not be used to “harass, coerce, or rob employees”). Moreover, the Board noted
several remedial options for union misconduct, and concluded that it would
continue to leave the “question of remedies to case-by-case adjudication.” 79
Fed. Reg. 74,359.
7 The Board’s conclusion that technological advances make a two-day time period
reasonable provides a framework for determining future requests for additional time or
controversies over failure to provide information kept in other formats in the regular course
of business or not readily accessible to the employer.
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With regard to the employee privacy concerns, the Board reviewed the
“revolution in communications technology” between when Excelsior was
decided and the present day. The Board cited evidence of the decline in
traditional means of communication—including United States mail and “face-
to-face conversations on the doorstep”—and analyzed the increasing use of
digital communications technology, observing that home and cellular phones,
as well as email, have become “a universal point of contact.” Id. at 74,337. The
Board considered “employee privacy concerns” and weighed the benefits of
expanding disclosure of voter contact information against the privacy risk. The
Board acknowledged the privacy risks associated with the use of cell phones
and emails and agreed that “[employees] have [a] nontrivial privacy interest
in nondisclosure of home address information.” Id. at 74,342. As the Board
explained, however, the privacy risks associated with this disclosure is “part of
our daily life,” and requires only the release of information that the employee
has already shared with his or her employer. Id. at 74,343 n.169.
The ABC entities predict that disclosure of such information exposes
employees to identity theft. But the ABC entities fail to identify any evidence
that disclosure of an email address and a cell phone number presents either a
greater risk of identity theft or a greater possibility of privacy infringement
than a home address. Indeed, virtual contact in the form of a phone call or
email is routinely and readily ignored. Face-to-face contact with a union
representative at an employee’s home is significantly more intrusive and more
difficult to avoid. And as an additional precaution, the voter list information is
not available to the public at large, but is provided only to a limited set of
recipients. Id. at 74,344.
Again, as this is a facial challenge, the ABC entities carry the burden of
demonstrating that no set of circumstances exists under which this regulation
would be valid. Exposing employees to a potentially increased risk of identity
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theft and data breach so as to ensure an informed electorate does not rise to
the level of arbitrary and capricious agency action. We may favor greater
privacy protections over disclosure, but it is within the Board’s discretion to
weigh competing interests and promulgate rules that advance the goals of the
Act. Its reasoning is not irrational and it is not the province of this court to
inject a contrary policy preference. The Board extensively considered the
burden on employers and the privacy concerns of employees when determining
the necessity of the expanded disclosure requirements. 8 The expanded
disclosure regime is rationally connected to the transformative changes in
communications technology, and the Board’s rule was not arbitrary and
capricious. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975)
(remarking that the Board is entrusted with “[t]he responsibility to adapt the
[NLRA] to changing patterns of industrial life”).
C.
The ABC entities also argue that the rule violates the NLRA by
interfering with protected speech during election campaigns. They contend
that the cumulative effect of the rule change improperly shortens the overall
pre-election period in violation of the “free speech” provision of the Act.
The NLRA protects the rights of both employers and employees to engage
in “uninhibited, robust, and wide open debate in labor disputes.” Chamber of
Commerce of U.S. v. Brown, 554 U.S. 60, 67–68 (2008) (reviewing Section 8(c)
of the NLRA, 29 U.S.C. § 158(c)). Prior versions of the regulations stated that
the regional director “will normally not schedule an election until a date
between the 25th and 30th days after the date of the decision, to permit the
8 “[W]e have concluded that employees’ legitimate interest in the confidentiality of
their personal email addresses and phone numbers is outweighed by the substantial public
interest in disclosure where, as here, disclosure is a key factor in insuring a fair and free
election and an expeditious resolution of the question of representation.” 79 Fed. Reg. 74349.
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Board to rule on any request for review which may be filed.” 29 C.F.R.
§ 101.21(d) (2014). Under the new rule, “[e]lections will no longer be
automatically stayed in anticipation of requests for review,” 79 Fed. Reg. at
74,309, and instead, “[t]he regional director shall schedule the election for the
earliest date practicable” consistent with the NLRA and the relevant
regulations. 29 C.F.R. § 102.67(b).
1.
Again relying on legislative history, the ABC entities point to the 1959
amendments to the Act to demonstrate congressional opposition to “quickie”
union elections. They point to comments by then-Senator John F. Kennedy,
sponsor of the 1959 bill, declaring the necessity of a 30-day waiting period as a
“safeguard against rushing employees into an election.” Notably absent from
their argument, however, is any citation to a provision of the Act or other
statute that mandates a specified waiting period prior to an election. This court
refers to legislative history only when the statutory text is ambiguous. See
Rainbow Gun Club, Inc. v. Denbury Onshore, LLC, 760 F.3d 405, 410 (5th Cir.
2014). This statutory text is unambiguous on its face, so we need not refer to
legislative history to discern its meaning. See Ratzlaf, 510 U.S. at 147–48.
Because the statutory text is unambiguous, the ABC entities’ citations to
legislative history are unpersuasive.
2.
Moreover, to the extent the ABC entities argue that the timing
provisions violate the APA, they fail to explain how or why—aside from
repeatedly characterizing the elections as “quickie elections”—the rule change
inhibits meaningful debate or qualifies as arbitrary and capricious. In
declining to create a specific deadline for elections, the Board addressed
concerns about impairing speech rights. The Board found that many employers
begin speaking to employees about union representation well before a petition
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is filed, “often as soon as [the employees] are hired.” 79 Fed. Reg. 74,320–21;
see NLRB v. Gissel Packing Co., 395 U.S. 575, 603 (1969) (recognizing that
union organizing campaigns rarely catch employers unaware). And as the
Board pointed out, employers “can compel attendance at meetings at which
employees are often expressly urged to vote against representation.” 76 Fed.
Reg. 74,323. The Board also charged regional directors, in setting the election,
with taking into account “the desires of the parties, which may include their
opportunity for meaningful speech about the election.” Id. at 74,318. This
discretion afforded to the regional director effectively precludes the ABC
entities’ facial challenge. The ABC entities cannot show that an impermissible
burden on speech exists in every set of circumstances. Because the Board
considered the potential burdens on speech and afforded the regional director
discretion in setting an election date, the ABC entities’ challenge to the timing
rule fails.
D.
Finally, the ABC entities contend that the rule—viewed as a single,
comprehensive change—is invalid because the Board acted arbitrarily and
capriciously in violation of the APA. Reframing their earlier arguments, the
ABC entities contend that the rule is arbitrary and capricious because it is
based on factors that Congress did not intend the Board to consider, including
speed in scheduling elections, delay of voter eligibility issues, disclosure of
employee information, and facilitation of organized labor.
The Board agrees that it considered speed in scheduling elections. But
increasing the efficiency and effectiveness of regulatory programs is well
within the Board’s purview. See Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326,
1340 (2013) (Scalia, J., concurring in part, dissenting in part) (“Making
regulatory programs effective is the purpose of rulemaking.”); Abbott
Ambulance of Ill. v. NLRB, 522 F.3d 447, 451 (D.C. Cir. 2008) (noting that the
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Board rule promoted efficiency in union elections and finding that the Board
could reasonably weigh delay and uncertainty in election results in altering
rules); NLRB v. Cedar Tree Press, Inc., 169 F.3d 794, 798 (3d Cir. 1999)
(sanctioning the Board’s policy choice regarding absentee ballots and noting
the validity of considering delay in the election process).
The Board also reasoned that the final rule was necessary to further a
variety of additional permissible goals and interests. 79 Fed. Reg. 74,315. In
adopting these changes, the Board explained that the rule was designed not
only to increase the speed and efficiency of the election process, but also to
reduce unnecessary barriers to elections, to modernize processes so as to
reduce cost, and to “make effective use of new technology.” Id. These goals all
further the Board’s mandate to “adopt policies and promulgate rules and
regulations in order that employees’ votes may be recorded accurately,
efficiently, and speedily.” A.J. Tower, Co., 329 at 331. And the ABC entities’
allegations of other impermissible considerations—delay in deciding voter
eligibility issues, disclosure of employee information, and assistance of
organized labor—are unsupported by the record. The ABC entities point to
nothing in the record that indicates these were factors considered by the Board
rather than simply the resulting means by which the Board pursued its
previously identified goals.
Next, the ABC entities claim that the Board failed to consider important
aspects of the alleged problem with the speed of elections. They argue that the
Board’s failure to address blocking-charge delays to elections is a “strong
indicator that the asserted reasons for accelerating other aspects of pre-
election procedures . . . are pretextual.” Blocking charges are unfair labor
practice charges filed concurrent to petitions for representation elections by
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unions in order to delay a vote. 9 See 79 Fed. Reg. 74455. But the Board directly
considered the delays caused by blocking charges, and modified current policy
in accordance with those considerations. Id. at 74,418–19; 29 C.F.R. § 103.20
(requiring that a party who files an unfair labor practice charge
simultaneously file a “written offer of proof in support of that charge”). The
ABC entities also accuse the Board of failing to adequately consider the
likelihood that increased deferral of pre-election issues to post-election
challenges will increase the overall time required to certify union
representatives. But the record refutes their unsubstantiated and conclusory
assertion. The Board considered evidence that more than 70% of elections in
2013 were decided by a margin greater than 20% of all unit employees,
“suggesting that deferral of up to 20% of potential voters . . . would not have
compromised the Board’s ability to immediately determine election results in
the vast majority of cases.” Accordingly, the deferral provision may render
certain issues moot, resulting in reduced litigation.
As a last-ditch effort, the ABC entities complain that representation
elections were delayed in only a small number of cases and there was “no
demonstrated need to make the sweeping changes adopted by the Board.” But
an agency does not act in an arbitrary and capricious manner simply because
it attempts to improve a regulatory scheme. “[I]f the agency considers the
factors and articulates a rational relationship between the facts found and the
choice made” and gives “at least minimal consideration to relevant facts
9 Under Board policy, processing of a petition is abated “where a concurrent unfair
labor practice charge is filed by a party to a petition and the charge alleges conduct that, if
proven, would interfere with employee free choice in an election, were one to be conducted.”
79 Fed. Reg. 74,455. See Bishop v. NLRB, 502 F.2d 1024, 1029 (5th Cir. 1974) (citing approval
for the blocking charge rule as a means of preventing employers from profiting by
wrongdoing, i.e., “committ[ing] unfair labor practices and . . . thereby succeed[ing] in
undermining union sentiment”).
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contained in the record,” it is not the role of the court “to weigh the evidence
pro and con.” Delta Found., Inc. v. United States, 303 F.3d 551, 563 (5th Cir.
2002). Here, the Board identified evidence that elections were being
unnecessarily delayed by litigation, see 79 Fed. Reg. 74,317–18, and that
certain rules had become outdated as a result of changes in technology, see id.
at 74,308. It conducted an exhaustive and lengthy review of the issues,
evidence, and testimony, responded to contrary arguments, and offered factual
and legal support for its final conclusions. Because the Board acted rationally
and in furtherance of its congressional mandate in adopting the rule, the ABC
entities’ challenge to the rule as a whole fails.
IV.
For the reasons explained, we AFFIRM the district court. We reiterate
the high burden faced by the ABC entities in this facial challenge, and we hold
that the challenged provisions of the Board’s rule neither exceed the scope of
its authority under the NLRA nor violate the APA’s arbitrary and capricious
standard.
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