BUSINESS GROUPS CHALLENGE CONSTITUTIONALITY OF NLRB “AMBUSH” ELECTION RULE

On December 15, 2014, slightly less than three years after the NLRB’s first thwarted attempt, a final rule (the “2014 Final Rule”) reducing the time between the filing of an election petition and holding workplace union representation elections was published in the Federal Register. The 2014 Final Rule has an effective date of April 14, 2015.  The Board described the 2014 Final Rule as “in essence a reissuance of the [2011] rule,” which was invalidated by the U.S. District Court for the District of Columbia on the ground that the Board lacked a statutory quorum when only two members voted to approve the rule. 9

The 2014 Final Rule has likewise been challenged in the same court, on the grounds that the Board exceeded its statutory jurisdiction and authority and violated the First and Fifth Amendments to the U.S. Constitution.  The suit, filed by the U.S. Chamber of Commerce, Coalition for a Democratic Workplace, National Association of Manufacturers, National Retail Federation, and Society for Human Resource Management, notes that the 2014 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.”  As the Board’s two dissenting Members noted, the 2014 Final Rule focuses on requiring employees to vote as quickly as possible “at the time determined exclusively by the petitioning union – – at the expense of employees and employers who predictably will have insufficient time to understand and address relevant issues.”

Changes to the election process include:

  • Postponing, until after an election, gathering voter eligibility evidence and related litigation;
  • Eliminating a 25-day automatic waiting period for pre-election Board review;
  • Making post-election Board review discretionary rather than automatic; and,
  • Requiring employers to provide labor organizations with employees’ personal information, such as home and cell phone numbers and email addresses.

The plaintiffs note that “[a]lthough the [2014] Final Rule does not provide any guidelines about the time frame in which elections will be conducted, the changes implemented in the 2014 Final Rule would allow elections to be held in as little as 14 days after the employer is first notified of the election petition.”  Current procedures include a Board expectation that elections will be held within a median of 42 days, and that 90 percent will be held within 56 days, from petition filing.  The plaintiffs observed that, currently, 95 percent of elections occur in less than two months.

For further information, including a link to the 2014 Final Rule, see NLRB Representation Case-Procedures Fact Sheet | NLRB.  To read the complaint filed in the U.S District Court for the District of Columbia opposing the 2014 Final Rule, see Chamber of Commerce of the United States of America v. NLRB.

Jami Suver focuses her practice in the area of labor and employment law.
 
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