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Business Groups Sue NLRB to Block New Union Election Rule

By Mark Wilson, Esq. on January 07, 2015 | Last updated on March 21, 2019

In December, the National Labor Relations Board issued a controversial new set of regulations governing union elections. Well, they're controversial if you're a business that doesn't want unions and takes advantage of a longer election timeline in order to disseminate anti-union propaganda.

Tired of being pushed around by the clearly immensely powerful labor unions, business groups, including the U.S. Chamber of Commerce, have filed a lawsuit to stop the new regulations from going into effect.

Biz Groups: It's Just Not Fair

The U.S. Chamber of Commerce, the lobbying organization for some of the largest companies in the world, filed suit against the NLRB in D.C. District Court. They're joined by other lobbying organizations like the National Association of Manufacturers and the National Retail Federation.

The complaint styles the new regulations as promoting "ambush" elections that could be held "in as little as 14 days after the employer is first notified of the election petition." (The complaint, though, is careful to point out that the regulation "does not provide any guidelines about the time frame in which elections will be conducted," so that 14-day period is theoretical.)

All of this, the complaint alleges, offends employers' First Amendment right "to communicate with workers about the election" and the intent of the National Labor Relations Act, which is to foster "a full and informed debate before workers cast their votes." The complaint also implicates the Fifth Amendment's Due Process clause, claiming that the lack of a pre-election hearing and mandatory review deprives employers of the right to litigate voter eligibility.

Unfortunately, that's not really what the rule says. Employers aren't prevented from litigating voter eligibility or inclusion issues at a pre-election hearing at all. What the rule does do is put off all non-eligibility issues for a post-election hearing, reserving for the pre-election hearing only eligibility and inclusion issues (which is, you know, the actual purpose of the pre-election hearing). As the rule observes, "[P]re-election litigation has at times been disordered, hampered by surprise and frivolous disputes, and side-tracked by testimony about matters that need not be decided at that time." Basically, the rule forecloses using the pre-election hearing as a stalling mechanism.

The shortened election period is likely designed to limit employer intimidation, harassment, and mischaracterizations of labor law in anti-union propaganda, which are not protected activities.

The Fight Goes On

Business groups have been fighting tooth and nail against this rule since 2012, when the District Court for the District of Columbia struck down the rule after finding that the Board didn't have the quorum necessary to pass it. The current rule is procedurally sound (or, at least, the Chamber of Commerce isn't arguing about the procedure), so the resulting litigation will go to the heart of whether the NLRB was "arbitrary and capricious" in enacting the rule.

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