NLRB’s ‘ambush’ election rule challenged: And guess who’s suing
HR pros were understandably upset by the National Labor Relations Board’s (NLRB) passing of its new “ambush election” rule. But they should be comforted knowing they have some major allies in the fight to kill it.
The NLRB’s rule, which is to take effect April 14, 2015, has just been challenged by a lawsuit filed in the U.S. District Court for the District of Columbia.
The suit seeks an injunction prohibiting the NLRB from enforcing the rule and an order vacating the rule.
It was filed by coalition of organization and industry representative groups, which includes:
- U.S. Chamber of Commerce.
- Coalition for a Democratic Workplace.
- National Association of Manufacturers.
- National Retail Federation.
- Society for Human Resource Management (SHRM).
Those are some powerful friends to have if you’re worried about how the NLRB’s new rule would affect your organization.
The NLRB’s new election rule (which we detailed here) would significantly reduce the amount of time employers would have to speak to potential voters once a group files a union representation petition.
The lawsuit claims the rule violates both the First and Fifth Amendments by curtailing employers’ free speech rights by denying employers a meaningful opportunity to communicate with employees during the time between the filing of a petition and a union election.
Also, the suit says the NLRB’s rule infringes upon the kind of free speech rights the National Labor Relations Act is meant to protect.
Another point of contention: The parties challenging the rule say the NLRB had no legitimate basis for issuing it — based on the fact that the majority of union elections have been held in less than 42 days, a target the board has set.
An excerpt from the suit:
“The Final Rule seeks to arbitrarily expedite the election process, even through the data show that the Board already conducts elections below its established time targets in more than 90% of cases.”
HR’s prospective
HR pros will no doubt like to see that SHRM has taken arms in the fight to bring the rule down.
The organization feels the NLRB has exceeded its authority by issuing the new rule.
SHRM’s also expressed concern with the requirement that employers provide the personal email addresses and phone numbers of voters to labor organizations prior to elections. The organization believes that requirement creates major privacy concerns.
The suit says while the NLRB acknowledged the privacy and identity theft risks the new rule could create, the board decided the risks were worth taking anyway.
That’s a bridge SHRM, and its allies in the suit, aren’t willing to cross.
SHRM President and CEO Henry G. Jackson had this to say about the requirement:
“SHRM is troubled by the NLRB’s willingness to take these risks. … HR Professionals take their obligations to protect employee private information seriously.”
Jackson’s take on the NLRB’s rule in general:
“This rule is an unprecedented change in the union election process, which is governed by the National Labor Relations Act of 1935. … The changes unfairly hinder the ability of employees to make an informed choice about whether or not to join a union. This rule is the latest and most sweeping action by the NLRB to tilt the process toward unionization and prevent employers from effectively communicating with employees, and it should be thrown out.”
There’s been no word yet on the likelihood of the suit succeeding to get an injunction or vacating the rule entirely.
We’ll keep you posted.
