NLRB Developments

SHRM Files Legal Challenge to the NLRB’s ‘Ambush’ Election Rule

January 9, 2015
On January 5, SHRM filed a lawsuit challenging the National Labor Relations Board’s (“NLRB” or “Board”) rulemaking changing union representation election procedures, which is set to become effective on April 14, 2015. SHRM’s lawsuit, filed in the U.S. District Court for the District of Columbia, asks the court to deem the rule unlawful and set it aside because it violates the National Labor Relations Act (“NLRA”) and the Administrative Procedure Act, as well as the First and Fifth amendments of the Constitution of the United States.

In this suit, SHRM is joined by the U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, the National Association of Manufacturers and the National Retail Federation. The representation election rule is also known as the “ambush” election rule because of its focus on speeding up the union election process at the expense of employees and employers who will have insufficient time to understand and address relevant issues regarding the impact unionization will have on both parties.

SHRM has long supported the fundamental right, guaranteed by the NLRA, of every employee to make an informed, private choice about whether or not to join a union. By allowing an election to be held in as little as 14 days after the employer is first notified of an election petition and severely limiting an employer’s ability to challenge aspects of the process prior to the election, the ambush rule promotes speed of elections over all other goals and requirements of the NLRA, including an employer’s free speech rights, the opportunity for an employee to make an informed and free decision on the merits of joining a union, and the chance for a full and informed discussion before an election is held.

In addition, the NLRB has failed to answer the most fundamental question of rulemaking: why is the new rule necessary? Currently, the Board handles election requests quickly, with over 95 percent of elections occurring in less than two months. In addition, over 90 percent of elections generate no pre-election litigation, surpassing the Board’s own stated goal of 85 percent. In addition, according to Bloomberg’s BNA’s recently-released midyear 2014 NLRB Election Statistics, unions won 69.2% of 671 representation elections held during the first 6 months of 2014, up from 65.5% of 653 elections held during the same period in 2013.

SHRM is particularly concerned about the rule’s mandate that employers provide their employees’ personal phone numbers and e-mail addresses to labor organizations. Although the Board acknowledges that this provision raises privacy, identity theft and other risks, it concludes that these “risks are worth taking.” SHRM members tasked with protecting employee privacy and personal information have expressed grave concern throughout the rulemaking process about providing this information to organized labor.

At the proposed rule stage, the boards of 96 SHRM state councils and chapters lent their names in support of SHRM’s comments opposing these changes, and over 4,600 individual SHRM members submitted comments cautioning the NLRB about the impact this proposal would have on fair union elections. In issuing its final rule, the Board did not make substantial changes based on concerns identified by SHRM and other stakeholders. As a result, this litigation represents the final opportunity to attempt to prevent the rule from going into effect. It is only the third time that SHRM has challenged a federal regulation in court.

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