A coalition of business groups have filed suit to stop a new rule by the National Labor Relations Board that would give unions the edge in workplace organizing elections. The coalition said the rule would allow for “ambush elections” that would rob workers “of the time needed to gather the facts they need to make an informed decision” about joining a union.
“With this rule, [President Obama’s] administration has made clear that it plans to pursue a partisan agenda to overturn longstanding and effective labor policy,” said Linda Kelly, senior vice president and general counsel for the National Association of Manufacturers, in a statement announcing the lawsuit. Other groups involved in the suit include the National Retail Federation and the U.S. Chamber of Commerce.
A spokesman for the NLRB did not respond to a request for comment.
The rule was adopted by the NLRB, the federal agency that enforces labor laws, on Dec. 12. It would allow for most votes by workers on whether to unionize to happen about two weeks after the board authorized them, a process that currently takes one-two months. It also would severely limit the ability of businesses to raise any objections to the NLRB prior to the vote.
The rule change was long sought by organized labor leaders, who have complained that the current process robs them of momentum to win the workplace votes. Businesses typically use the interim period before the vote to try to convince their workers that a union isn’t in their best interests.
The board’s changes will give employers seven days to raise an objection with the NLRB after it announces that a union organizing election is required. The rule also limits the evidence that can be used at those hearings, and allows NLRB regional directors to defer most questions regarding which workers are eligible to vote until after the election.
The new rule also will require employers to turn over all contact information they have for their employees to unions, including private phone numbers and email addresses, regardless of whether the workers have authorized that disclosure.
The NLRB passed a version of the rule in 2012, only to have in struck down in court because the five-member board did not have a proper quorum. The board had only three members when it adopted the rule, two of whom were recess appointees by Obama. In a unanimous decision last year, the Supreme Court declared those appointments to be unconstitutional.
The current version of the election rule was approved while the NLRB had a full five Senate-approved members, so the validity of the board is not an issue.
The coalition’s lawsuit is focusing on the rule itself, arguing that the NLRB has exceeded its statutory authority under the National Labor Relations Act and that it unconstitutionally restricts the ability of businesses to communicate with their employers prior to a workplace election.
According to the NLRB’s data, workplace elections have occurred on average about 38 days after the filing of a petition over the last decade. Unions win most of the time. Of the 1,330 workplace elections held in fiscal 2013, organized labor won 852.
