ASSOCIATED BUILDERS AND CONTRACTORS OF TEXAS, INCORPORATED; Associated Builders and Contractors, Incorporated Central Texas Chapter; National Federation of Independent Business/Texas, Plaintiffs-Appellants v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellee
No. 15-50497
United States Court of Appeals, Fifth Circuit.
Filed June 10, 2016
826 F.3d 215
Ayestas also points out that he was not in fact examined by a psychologist in 1997, but we stated he had been in our opinion. Our analysis is nonetheless unchanged. In our opinion, we held that even if Ayestas had shown there had been deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he did not show prejudice, that is, a “substantial, not just conceivable, likelihood of a different result.” Ayestas v. Stephens, 817 F.3d 888, 898 (5th Cir.2016) (quoting Cullen v. Pinholster, 563 U.S. 170, 189, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)). Ayestas does not challenge this aspect of our panel opinion. Our conclusion that Strickland ineffectiveness was not shown remains unchanged.
Nancy Kessler Platt, Deputy Associate General Counsel, Kevin Patrick Flanagan, Esq., Dawn Goldstein, Barbara A. O‘Neill, Esq., Paul A. Thomas, Trial Attorney, Marissa Ann Wagner, National Labor Relations Board, Contempt, Compliance, & Special Litigation Branch, 1015 Half Street, S.E., Washington, DC 20003, for Defendant-Appellee.
Jason Edward Winford, Jenkins & Watkins, P.C., Suite 200, 2626 Cole Avenue Dallas, TX 75204, Milton L. Chappell, National Right to Work, Legal Defense Foundation, Suite 600, 8001 Braddock Road, Springfield, VA 22160, for Amici Curiae National Right to Work Legal Defense Foundation, Shannon W. Cotton, Michael A. Murphy, Jorge Gonzalez Villareal.
Anthony Barrett Byergo, Ogletree Deakins, P.C., Suite 400, 4520 Main Street, Kansas City, MO 64111, for Amicus Curiae Retail Litigation Center, Incorporated.
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 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
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
Before the rule became effective, the ABC entities filed this action, arguing that the rule exceeds the Board‘s statutory authority under the
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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, we ask “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. 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, 104 S.Ct. 2778. 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, 121 S.Ct. 1861, 149 L.Ed.2d 939 (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
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, 107 S.Ct. 2095, 95 L.Ed.2d 697 (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, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993))).
III.
The NLRA grants employees the right “to bargain collectively through representatives of their own choosing . . . and to refrain from . . . such activities.”
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,
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 con-
Section 9 of the NLRA states that “[t]he Board shall decide in each case . . . the unit appropriate for the purposes of collective bargaining.”
Prior versions of the regulations neither expressly stated the purpose of the hearing nor specifically limited the evidence that could be introduced. See
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
But this reading of the rule and the legislative history is unpersuasive. The actual language of the rule neither “precludes” nor “prevents” the 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.”
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, 114 S.Ct. 655, 126 L.Ed.2d 615 (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, 65 S.Ct. 1316, 89 L.Ed. 1877 (1945). The Supreme Court, in Inland Empire, interpreted Section 9 to grant the Board wide discretion in 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, 65 S.Ct. 1316; see NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946)
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, 118 S.Ct. 2196, 141 L.Ed.2d 540 (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.
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].”
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.”
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
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, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). To affirm an
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’ identities.
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.”
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.”
The ABC entities predict that disclosure of such information exposes employees to identity theft. But the ABC entities fail to
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 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. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 43 L.Ed.2d 171 (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, 128 S.Ct. 2408, 171 L.Ed.2d 264 (2008) (reviewing Section 8(c) of the NLRA,
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-
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 is filed, “often as soon as [the employees] are hired.”
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., 568 U.S. 597, 133 S.Ct. 1326, 1340, 185 L.Ed.2d 447 (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 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 pol-
The Board also reasoned that the final rule was necessary to further a variety of additional permissible goals and interests.
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 unions in order to delay a vote.9 See
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
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.
EDITH BROWN CLEMENT
CIRCUIT JUDGE