U.S. Chamber of Commerce and Major Business Associations Sue NLRB Over Ambush Election Rule

Volume 14, Issue 2
January 29, 2015

The U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, the National Association of Manufacturers, the National Retail Federation, and the Society For Human Resource Management (SHRM) filed a lawsuit in the U.S. District Court for the District of Columbia seeking to stop the National Labor Relations Board (NLRB) from moving forward with its "ambush elections" rule, which is set to become effective on April 14, 2015.

As reported in KZA's December 15, 2014 Employer Report, the NLRB's "ambush elections" rule severely shortens the time between the filing of a union election petition and the election itself, to as little as 14 days after the employer is first notified, making it difficult for employers to communicate with employees regarding whether or not to form a union. The new rule also requires employers to furnish union organizers with all available personal email addresses and phone numbers of employees eligible to vote in a union election; limits the issues that can be addressed before the election; and postpones virtually all litigation over proposed bargaining unit and union eligibility issues until after the election itself.

According to the Chamber's lawsuit, the rule violates the National Labor Relations Act and the Administrative Procedure Act, as well as employers' free speech and due process constitutional rights. In particular, the Chamber's lawsuit challenges the NLRB's rule as impermissibly limiting employers' rights to communicate with employees about unionization by dramatically shortening the period between the filing of a union election petition and the holding of the election itself.

SHRM asserts that the NLRB failed to answer the most fundamental question of rulemaking: why is the new rule necessary? Currently, the NLRB handles election requests quickly, with over 95% of elections occurring in less than 2 months. In addition, over 90% of elections generate no pre-election litigation, surpassing the NLRB's own stated goal of 85%.

Additionally, according to Bloomberg 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.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.