About Us  |  About Cheetah®  |  Contact Us

Another challenge to NLRB ‘ambush’ election rule falls short

August 6th, 2015  |  Lisa Milam

By Lisa Milam-Perez, J.D.

Trade groups seeking to overturn the National Labor Relations Board’s revisions to union representation election procedures are now 0-2 in court, with a federal judge in the District of Columbia upholding the controversial rule last week. The plaintiffs, the U.S. Chamber of Commerce, National Association of Manufacturers (NAM), Society for Human Resource Management (SHRM), and other organizations, failed to show that the rule contravened the National Labor Relations Act (NLRA) or the Constitution, was arbitrary and capricious and thus ran afoul of the Administrative Procedure Act (APA), or was an abuse of Board discretion, the court found. “Ultimately, the statutory and constitutional challenges do not withstand close inspection, and what is left is a significant policy disagreement with the outcome of a lengthy rulemaking process,” it wrote.

A month earlier, a federal court in Texas had rejected a similar challenge brought by Associated Builders and Contractors, concluding that the rule did not on its face violate either the NLRA or the APA. The plaintiffs argued to no avail that the newly promulgated rule impermissibly restricts employers’ ability to litigate threshold issues during a union election; invades employees’ privacy by requiring the disclosure of their personal information; or interferes with employers’ free speech rights during organizing campaigns. Moreover, the plaintiffs “point[ed] to nothing in the record which supports their conclusion that the Board intended to favor organized labor,” which the agency denies.

Working as intended. Meanwhile, the NLRB’s election rule, which took effect in April with the goal of expediting union election procedures, appears to be having its intended effect. Timothy M. McConville, who leads the labor and employment law group at Odin, Feldman & Pittleman in Reston, Virginia, blogged in June that one NLRB region (Phoenix’s Region 28) has had an average election period of 18 days since enactment. Region 22, in Newark, New Jersey, conducted one election in just 9 days after the union’s election petition was filed; Region 4 in Philadelphia conducted an election within 10 days. (Those stats were based on election data between April and early June.)

While management attorneys almost universally lament that the rule changes sharply increase the odds of a union election win, attorneys at Hunton & Williams snatched a victory for an employer under the revised rules but noted it was no easy task. “Our experience under the new rules taught us that, though elections are still winnable, there is no room for error, and there is not enough time to begin a campaign from scratch once the petition is filed,” wrote Gregory B. Robertson and Ryan A. Glasgow, who offered a play-by-play in a recent blog post.

The fight goes on. “We remain committed to fighting this battle on all fronts,” NAM Senior Vice President and General Counsel Linda Kelly said following the adverse ruling, signaling not only an imminent appeal of the decision but ongoing legislative advocacy to thwart the rule by other means. Sensing, perhaps, that the battle was heading uphill, Kelly noted that the trade group also was equipping manufacturing employers with the necessary tools to help them comply with the “onerous regulation.”

SHRM also issued a statement, calling the decision “a loss for workers everywhere” and noting that it prevents employees from having the information they need to make an informed decision about unionizing. “SHRM will continue to work with HR professionals on strategies to protect their direct and open communication with employees about the workplace.”

Congressional challenges. Undoubtedly, the industry groups will have allies in Congress. Days before the latest NLRB court win, Senator Orrin Hatch (R-Utah) and Rep. Tom Price (R-Ga) introduced bicameral legislation that would roll back the NLRB’s election rule changes. In April, Republicans floated another pair of legislative proposals hoping to undo the rule’s key provisions. That came on the heels of a rare joint resolution by Congress to invalidate the rule under the Congressional Review Act—a maneuver that President Obama blocked by way of a pocket veto. The Republicans’ tireless quest to undo the NLRB rule shows no sign of abating.