NLRB’s Ambush Election Rules Challenged by Business Coalition

On January 5, 2015, a business coalition made up of the Chamber of Commerce of the United States, Coalition of a Democratic Workplace, National Association of Manufacturers, and the National Retail Federation and Society for Human Resources Management have filed a lawsuit in the U.S. District Court for the District of Columbia seeking to vacate the NLRB’s Final Union Election Procedures Rule. The Coalition asserts the Board exceeded its authority under the National Labor Relations Act (“the Act”) when it amended its rules. It also alleges that the new rules are unconstitutional and violates the First and Fifth Amendments of the United States Constitutions.

This lawsuit is similar to the one filed in 2012 when the Board adopted a similar set of rules to representation election procedures. However, in 2012, the Court found because the NLRB lacked a quorum when it adopted the 2011 amendments, the NLRB did not have the power to adopt the 2011 amendments. In addition, as a result of the NLRB’s lack of quorum, the Court found it was unnecessary for it to address the constitutional arguments that are now the center of this current lawsuit.

Despite the Coalition’s lawsuit, its Complaint does not state that it is seeking an injunction to prevent the NLRB from implementing the new election rules while the case is pending. The new election rules are scheduled to be implemented by the NLRB on April 15, 2015; however, it is likely the Coalition will seek an injunction before such date.

If the Coalition does not seek an injunction or the injunction is denied, the NLRB will implement the following procedural changes to the union election process:

  • Petitions can be filed electronically. Notices from the Board may be served electronically.
  • The Regional Director will set a pre-election hearing for eight days after the Petition is filed. Post-election hearings will be set 14 days after the filing of objections.
  • Parties are allowed to wait until after an election is held to file a request for review regarding the Regional Director’s decisions made in the pre-election hearing. Therefore, there will be no automatic stay of an election after the Regional Director issues a decision of election.
  • Petitions must be accompanied by a Statement of Position in order to expedite the pre-election hearing.
  • Respondents are required to file a Statement of Position in response.
  • Pre-election issues will be limited to those that are necessary to determine whether an election should be held.
  • NLRB will serve a Notice of Hearing and a Notice of Petition for Election. The employer is then obligated to post a Notice of Petition for Election within two business days of the Board’s service of the Petition.
  • One day prior to the pre-election hearing, employers will be required to provide a list of prospective voters with the job classifications, shifts, and work locations to all parties.
  • The voter list must be submitted within two days of the Regional Director’s approval of an election agreement or a decision directing an election. This voter list must include personal phone numbers, emails, and addresses.

As a result of these quickie election procedural rules, employers will be forced to take action by being more proactive on a year-round basis regarding unionization training’s for management.

The St. Louis labor and employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including union elections, for almost sixty years. Our attorneys are experienced in navigating employers through the NLRB union election process and are available to discuss these issues and others. As always, the forgoing is for informational purposes only and does not constitute legal advice regarding any particular situation. The choice of a lawyer is an important decision and should not be based solely on advertisements.