On December 12, the NLRB adopted its final rule amending its representation election procedures to provide for shortened election periods (aka “quickie elections”) and other changes to the election process. These changes will make it more difficult for employers to effectively campaign and challenge the election process before the voting takes place. A summary of these changes is available at the NLRB website by clicking here. In addition, our December 18 blog entry about these new rules can be accessed by clicking here.
In the last few weeks, two separate lawsuits have been filed challenging the quickie election rules. On January 5, the United States Chamber of Commerce, SHRM and several other employer groups filed a complaint in the Federal District Court for the District of Columbia claiming that the NLRB exceeded its constitutional authority and violated the Administrative Procedures Act in enacting these quickie election rules. The lawsuit seeks an injunction invalidating the new election rules. A copy of the complaint is available here.
The following week, on January 13, the National Federation of Independent Businesses and Associated Builders and Contractors filed a second lawsuit in the Federal District Court for the Western District of Texas. This second lawsuit did not allege a constitutional violation but instead is seeking an injunction that declares the quickie election rules as being invalid because (a) they conflict with the Administrative Procedures Act (b) they conflict with the statutory language of Section 9 of the National Labor Relations Act, which requires that the NLRB “assure to employees the fullest freedom in exercising the rights guaranteed by [the] Act” and (c) they violate the privacy rights of employees by requiring personal information such as phone numbers and email addresses to be turned over to the union. A copy of this complaint is available here.
At this stage, it is very difficult to predict how these lawsuits will be resolved. Recently, the NLRB has had tremendous difficulty in the federal courts. Many of their recent rules and practices have been invalidated by the courts, including their attempt to require employers to post a poster about section 7 rights and their attempts to invalidate class action waiver provisions in mandatory arbitration agreements. However, in passing the modified election procedure rules, the NLRB was aware that a court challenge was inevitable and therefore acted very carefully and narrowly.
Given that the new rules go into effect in April, we expect that most unions will move slowly with their current organizing drives during the first quarter of 2015 and then really kick into gear once the quickie election rules are effective in mid-April.