This week, the U.S. Chamber of Commerce and other trade groups filed a Motion in the U.S. District Court for the District of Columbia, arguing that the National Labor Relations Board’s “quickie election” rules should be invalidated. The rules, which were published at the end of last year in the Federal Register, would allow a labor union to hold an election in as little as 11 days after the filing of an election petition with the NLRB. As the reader may recall, the rules are set to go into effect on April 14, 2015, unless the Court intervenes or the President adopts twin resolutions issued by the U.S. House and Senate disapproving of the rules (which is highly unlikely).
The Chamber’s Motion attacks the rules on three fronts. First, the Chamber argues that the rule exceeds the Board’s authority under the National Labor Relations Act. Specifically, the Chamber contends that the hearing procedures contained within the new rules will not amount to an “appropriate” hearing, which is required by section 9(c) of the National Labor Relations Act, because the rule will allow the Board to hold an election even if the parties have not been able to present evidence regarding voter eligibility, inclusion, and supervisory status.
Next, the Chamber argues forcefully that the rules are “arbitrary and capricious,” in violation of the Administrative Procedure Act.
“Under the guise of administrative ‘tweaking,’ the board has undertaken to fundamentally alter the NLRA’s election process in a way that upsets the balance Congress struck (and the Constitution requires) between employees’ statutory right to vote for or against union representation and an employer’s right to engage in free speech and receive due process,” they said.
In short, the Chamber opines that the rules offer a solution to a problem that does not exist. Since the Board has been able to hold most elections in fewer than 42 days after the filing of an election petition (which is an internal timeline set by the Board), there is no need to further shorten the time between a the filing of an election petition and the actual election. Doing so, the Chamber contends, will lead to a “vote now, understand later” situation for most voters because employers will have little time to educate employees about how a union shop would run.
Finally, the Chamber briefly contends that the rules violate the U.S. Constitution by forcing employers to engage in speech. The new rules would require an employer facing an election to post a notice to its employees informing them of the election. This, the Chamber argues, the Board cannot do. Forcing a private party to “disseminate speech that it does not wish to convey . . . would allow the government to compel individuals to engage in any form of speech,” which cannot be the law.
While the parties continue to debate the merits of the Board’s “quickie election” procedures in Court, the Board has already begun training its staff on the new rules. Assuming the rules go into effect as scheduled on April 14, employers would be wise to consult an experienced labor lawyer regarding union avoidance techniques. Failure to do so could result in an unpleasant surprise and a fire-drill “quickie election” taking place.