The National Labor Relations Board (“NLRB” or “Board”) has successfully defended recent changes to union-representation case procedures for the second time in federal district court. In the latest case, Chamber of Commerce v. NLRB, the AGC-supported U.S. Chamber of Commerce and Coalition for a Democratic Workplace, along with others, sued the NLRB over the rule in the U.S. District Court for the District of Columbia. On July 29, the court granted the NLRB’s motion for summary judgement.
As previously reported, the “quickie” or “ambush” election rule makes a multitude of changes to the union election procedures, effectively shortening the process in a manner expected to make union organizing easier. The rule took effect on April 14. On June 1, a federal district court in Texas dismissed the first challenge to the rule, which was brought by chapters of the Associated Builders and Contractors (“ABC”) and of the National Federation of Independent Businesses (“NFIB”). ABC and NFIB have filed an appeal.
In the Chamber case, the plaintiffs raised numerous challenges to individual provisions of the rule. The court rejected each of them, finding the following regarding the rule:
- The requirement that employers post a particular workplace notice about the filing of a petition for an election does not violate the National Labor Relations Act (“NLRA”) or the First Amendment to the Constitution.
- The provision granting NLRB regional directors the discretion to decline to hear evidence on individual voter eligibility and inclusion issues does not violate the NLRA or the Fifth Amendment to the Constitution, and is not arbitrary and capricious.
- The requirement that an employer file a written Statement of Position one day before the pre-election hearing does not violate the NLRA or the Fifth Amendment to the Constitution.
- The elimination of putting a hold on an election while the Board reviews any requests for review filed in favor of a directive that the NLRB regional director hold the election on the earliest date practicable does not violate the NLRA or the First Amendment to the Constitution, and is not arbitrary and capricious.
- The requirement that employers furnish the union with a voter list that includes not only employee names and home addresses, but also e-mail addresses and personal cell phone numbers does not violate the NLRA and is not arbitrary and capricious.
- The provision rendering post-election review of disputes by the Board discretionary and eliminating parties’ ability to stipulate to mandatory Board review is not arbitrary and capricious.
The court acknowledged that the plaintiffs’ “policy objections may very well be sincere and legitimately based,” but it found that the 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 are considering an appeal. AGC will monitor and report on significant developments.
For more information, contact Denise Gold, Associate General Counsel, at email@example.com or (703) 837-5326. Additional info on the rule is also available on the AGC website. First log in as an AGC member at www.agc.org, then go to the Labor & HR Topical Resources page and select the main category Unions/NLRA and subcategory Union Organizing Campaigns & Representation Elections. Note the items labeled “Samson, 2015.”