The Senate Health, Education, Labor and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) strongly condemned the National Labor Relations Board’s reissued “quickie” election rule for union representation elections, slated to take effect on April 14, 2015, at a recent HELP Committee hearing on the Board rule. 

Referring to it as the “‘ambush election rule,’ because it forces a union election before an employer has a chance to figure out what is going on,” Senator Alexander’s criticism also was leveled at the rule’s intrusiveness and unnecessary haste. “Even worse,” he said, “it jeopardizes employees’ privacy by requiring employers to turn over personal information including email addresses, phone numbers, shift hours and locations to union organizers. Today more than 95 percent of union elections occur within 56 days of the petition-filing.” Senator Alexander noted that under this new rule, elections could take place in dramatically less time. 

A similar rule previously issued by the NLRB in 2011 was struck down by a federal district court in July 2012. The reissued rule will significantly decrease the amount of time employers and employees have to prepare for a union representation election. The business community argues that the accelerated election schedule will prevent business owners from responding adequately to a union’s petition to represent employees and compromise both workers’ privacy and their ability to make an informed decision at the ballot box. Under the rule, NLRB Regional Directors are instructed to schedule elections “at the earliest date practicable” after a petition is filed. This may shorten the election timeline from the current 42 days to possibly as little as 14 days.

Charles I. Cohen, former member of the National Labor Relations Board during the Clinton administration, testified at the HELP Committee hearing that the rule is a departure from the NLRB’s past practices.

In his 40 years of practice, Cohen said, the rules handed down by the Board have been balanced and fair. “But this one transparently seeks to deprive law-abiding and non-games-playing employers of their right to communicate their views under Section 8(c) of the [National Labor Relations] Act,” Cohen said. “The entire employer community is presumed to be on the wrong side, standing ready to trample the rights of employees.”

Elizabeth Milito, senior counsel for the National Federation of Independent Businesses’ Small Business Legal Center, agreed. She noted that not only do most employers wish to work with employees to address their concerns, but also that most are not flush with labor law attorneys — or the cash to hire one — to respond to union petitions at a moment’s notice. In fact, most are small business owners who work side by side with their employees and cannot afford attorneys or even human resources personnel to help them navigate the laws and regulations, she said. The rule is unfair to these employers, she maintained. It is also unfair to the workers, she argued, as it gives them little time to understand and weigh their options before voting.

“Holding a union election in as little as [14 days] makes absolutely no sense unless the goal is to complicate the process and reduce the employee’s chance to make an informed decision,” Milito said.

The new rule is being challenged under the Congressional Review Act of 1996 allowing Congress to disapprove “major” rules issued by federal agencies, like the quickie election rule. Under the CRA, if a member of Congress finds an agency rule objectionable, he or she can introduce a “resolution of disapproval.” The resolution is put to a vote in both Houses of Congress, and, if it passes, goes to the President for action. The President retains the right to veto the measure, however. The President is expected to veto the resolution (S.J.Res.8) if it passes. It also is unlikely that Congress will be able to muster the two-thirds vote necessary to override that veto. The CRA was invoked successfully in 2001 to disapprove OSHA’s controversial ergonomics program rule. (For more, see Congress Reviews NLRB Quickie Election Rule.)

It appears the challenges to the NLRB election rule most likely to succeed may come from lawsuits that have been filed by employer business and trade associations. On January 5, 2015, the U.S. Chamber of Commerce and certain employer associations in Washington, D.C., filed a complaint against the NLRB in the U.S. District Court for the District of Columbia seeking a declaratory judgment and injunction against enforcement of the Board’s new election rule. The Chamber’s suit alleges the rule violates the National Labor Relations Act, the Administrative Procedures Act, or both, as well as employers’ free speech and due process constitutional rights, among other things. U.S. Chamber of Commerce, et al. v. NLRB, No. 1:15-cv-9.

A similar challenge was filed on January 13, 2015, by the Associated Builders and Contractors of Texas, Inc., Associated Builders and Contractors, Inc., Central Texas Chapter, and National Federation of Independent Business/Texas in the U.S. District Court for the Western District of Texas. The suit asserts the new rule violates the NLRA, the APA, or both. Associated Builders and Contractors of Texas, Inc., et al. v. NLRB, No. 1:15-cv-00026. (For more, see Chapter Two: Lawsuits Filed Challenging NLRB’s New Election Rules.)

No date for decision has been set in either case, and it is unclear whether a district court decision against it would impel the Board to suspend the rule nationwide.

For now, employers must prepare for the new rule and develop a strategic, company-wide labor relations plan. Employers are urged to review their organization’s options to make strategic decisions in light of the new rule and other recent NLRB decisions. Training managers and supervisors before the rule is implemented is critical. (For more, see Preparing for Labor Board’s Quickie Election Rule.)