NLRB ‘Ambush’ Election Rule Upheld Again

By Allen Smith July 31, 2015

The U.S. District Court for the District of Columbia shot down a legal challenge to the National Labor Relations Board’s (NLRB’s) “ambush” election rule, disappointing groups that had brought the challenge, including the Society for Human Resource Management (SHRM).

“The court ruling upholding the NLRB union election rule is a loss for workers everywhere,” SHRM said in a statement. “Employees need adequate time and information to make an informed decision about whether or not to join a union, and this decision prevents that.”

SHRM and the Chamber of Commerce of the United States of America, the Coalition for a Democratic Workplace, the National Association of Manufacturers and the National Retail Federation had challenged a rule governing union elections that took effect on April 14. The lawsuit, which SHRM decided to join last December, said that the board exceeded its statutory authority under the National Labor Relations Act (NLRA) when it issued the rule. The lawsuit also maintained that the final rule was arbitrary and capricious and should be set aside under the Administrative Procedure Act, and violated employers’ First and Fifth Amendment rights to freedom of speech and due process.

Challenged Provisions

The provisions challenged in the rule include:

  • The requirement that the employer file a written “statement of position” before the pre-election hearing is scheduled to begin, detailing its position on a range of issues, or risk waiving its ability to litigate those issues at the hearing.
  • The provision permitting regional directors to decline to take evidence on or litigate individuals’ eligibility to vote or be included in an appropriate unit.
  • The provision stating that once the pre-election hearing has been held, the regional director shall schedule the election for the earliest date practicable.
  • The requirement that within two business days after the direction of election, the employer must provide a voter list to the regional director and the union containing contact information of all employees, including personal e-mail addresses and cellphone numbers.
  • The elimination of parties’ ability to stipulate to mandatory post-election board review through a stipulated election agreement.

Arguments Rejected

A statement of position, which must describe all issues the employer intends to raise at the hearing, must be filed one day before the pre-election hearing under the representation case procedures rule. The plaintiffs argued that the statement-of-position requirement violates employers’ due process rights by not providing enough time to respond to union petitions. However, the court said regional directors have the discretion to grant an extension to an employer that needs additional time to file its statement of position. “Given this built-in flexibility, plaintiffs cannot show that an employer will necessarily be deprived of its due process rights in every set of circumstances,” the court stated.

The final rule violates the act’s requirement of an appropriate pre-election hearing and violates the Fifth Amendment’s due process rights by restricting the employer’s ability to litigate issues of voter eligibility, the plaintiffs also argued.

Not so, the court ruled. “The text of the statute does not support plaintiffs’ contention that the NLRA requires that all voter eligibility issues be heard and resolved in advance of the election,” the court said.

As for the Fifth Amendment argument, the court determined that the plaintiffs did not identify a due process interest in what takes place during a representation election proceeding. In addition, employers retain the right to petition the board for review pre- and post-election, can refuse to bargain, and can obtain a hearing on their claims before a federal court of appeals. So, the final rule does not violate employers’ due process rights to an “appropriate hearing.”

The elimination of the presumptive pre-election waiting period of at least 30 days between petition and election does not violate the NLRA or First Amendment, the court ruled, emphasizing that there is no language in the NLRA specifying any length of time required prior to an election.

The voter list requirement was particularly troubling to the plaintiffs because of the privacy issues it raised. The plaintiffs asserted that it was arbitrary and capricious, but the court disagreed. The court noted that employers only have to supply “available” personal e-mail addresses and “available” home and personal cellphone numbers of employees. And it noted that the NLRB “found that the privacy risks associated with the use of cellphones and e-mail ‘are part of our daily life’ and that ‘these risks are worth taking and as a practical matter, must be taken, if communication about organizational issues is going to take place using tools of communication that are prevalent today.’ ”

The plaintiffs also expressed concern that employers will be more reluctant to enter into binding election agreements if they cannot stipulate to mandatory post-election board review, and that litigation would increase as a result. The court rejected this concern as well, saying, “The board considered these arguments, and it predicted that the calculus of whether to litigate pre-election issues or enter into an election agreement would remain the same under the final rule as it did under the prior regime: Parties will weigh ‘the likelihood of success, the importance of the issue and the cost of litigation.’ ”

In separate litigation, the U.S. District Court for the Western District of Texas upheld the ambush election rule on June 1.

SHRM promised to “continue to work with HR professionals on strategies to protect their direct and open communication with employees about the workplace.” And it stated, “In addition, we are reviewing the court’s decision and looking at our options for next steps.”

This decision is Chamber of Commerce of the United States of America v. National Labor Relations Board, C.A. No. 15-0009 (D. D.C. 2015).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.



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