On July 29, the National Labor Relations Board won another challenge to its “quickie election” rules pursued by employer groups. This time, Judge Amy Berman Jackson in federal court in the District of Columbia pushed aside arguments of the U.S. Chamber of Commerce and the National Retail Federation, among others, seeking to invalidate the rule for exceeding the Board’s authority under the National Labor Relations Act, and violating the Administrative Procedures Act and the First and Fifth Amendments to the U.S. Constitution.
The rule, which became effective this past April 14, changed the procedures for representation cases. One key effect of the changes was cutting the time between union petition and election, thus depriving employers of campaign days to communicate with employees before the vote.
Judge Jackson concluded that, although the employer groups’ “policy objections may very well be sincere and legitimately based . . . in the end, this case comes down to a disagreement with choices made by the agency entrusted by Congress with broad discretion to implement the provisions of the NLRA and to craft appropriate procedures.”
The plaintiffs say that they intend to appeal.
Judge Jackson’s decision comes after a federal judge in the Western District of Texas dismissed a similar challenge. The Texas decision, issued by Judge Robert L. Pitman, is now before the U.S. Court of Appeals for the Fifth Circuit. (The Fifth Circuit hears appeals from federal courts in Louisiana, Mississippi, and Texas.)
Meanwhile, Republicans in the Senate have introduced proposed legislation called the Employee Rights Act, which - among other things - would undo the “quickie election” rule, require new certification elections periodically if there was 50 percent workforce turnover since the last Board election, require certifications to be based on a majority of employees in a bargaining unit (rather than a majority of the unit employees voting), and establish bargaining-unit-wide voting rights for strike votes (instead of the typical union-members-only voting rights). The proposed legislation, if passed, would change some of the more “undemocratic” aspects of U.S. labor law that favor unions. But passage is unlikely while President Obama is in office, given his expressed willingness to use his veto power to stop anything lessening the power of organized labor, which has been a foundation of his political support.
At this point, due diligence for employers would include getting out in front of any campaign activity by auditing labor readiness, supervisory status of lead persons and other classifications of employees in “gray areas,” and workplace rules and policies that recent Board decisions and a General Counsel’s memorandum have categorized as unlawful interference with employees’ Section 7 rights. The suggested time for that due diligence is now.