On January 5, the United States Chamber of Commerce filed suit in the United States District Court for the District of Columbia challenging the National Labor Relations Board’s “recently issued ‘ambush’ election rule.” The Chamber is joined in the lawsuit by the Coalition for a Democratic Workplace, National Association of Manufacturers (NAM), National Retail Federation (NRF), and Society for Human Resource Management (SHRM).
The NLRB issued its final rule expediting union representation elections on December 12, 2014 containing many of the same controversial measures published in the Board’s 2011 attempt to overhaul these procedures. The NLRB’s 2011 attempt was invalidated by the courts just weeks later because the Board promulgated the rule without a proper quorum of three Board members. The Board subsequently withdrew the rule, but in February of this year, with a full quorum of confirmed Members, it reissued a Notice of Proposed Rulemaking identical to its earlier proposal.
The lawsuit challenges the final rule on the ground that it violates both “the First and Fifth Amendments, contravenes clear congressional requirements, and is arbitrary and capricious.” Specifically, the complaint asserts that the final rule impermissibly curtails employers’ First Amendment free speech rights, which are expressly protected by Section 8(c) of the National Labor Relations Act, by denying employers a meaningful opportunity to communicate with its employees between the filing of the election petition and the holding of the election. Moreover, the shortened period of time requires employees to “vote now, understand later” thereby denying them “the fullest freedom in exercising the rights guaranteed by” the NLRA.
The complaint also asserts that the final rule is arbitrary and capricious because the Board provided no legitimate basis for the new rule:
The Final Rule seeks to arbitrarily expedite the election process, even though the data show that the Board already conducts elections below its established time targets in more than 90 percent of cases. … The Final Rule introduces no new time targets for representation elections, further undermining the rational basis for radically altering procedures that have met the agency’s established time targets for many years.
The complaint also cites the Board’s unprecedented requirement that employers now provide employees’ personal phone numbers and email addresses to labor organizations without adequate justification, especially for the Board’s claim that the “risks [of identity theft and other privacy issues] are worth taking.” Moreover, the Chamber asserts that the new rule, contrary to the Board’s conclusion, will result in more litigation as employers will now be required to litigate in unfair labor practice cases both “before the Board and in Federal court, issues that are currently reviewed by the Board in a post-election appeal as a matter of right.”
It is expected that the Chamber will quickly move for summary judgment after the NLRB files its answer in an attempt to get a ruling before the new election rule goes into effect on April 14, 2015. However, employers should not wait for a ruling from the court before preparing for life under the new election rule. The new rule will be a catalyst for a sea change in union organizing, and unions will undoubtedly seek to capitalize as soon as the rule goes into effect. Stay tuned to our blog, our Twitter feed (@LRToday), and our Flipboard magazine for additional details and updates.