Court approves NLRB’s expedited union election rule

From Westlaw Journal Employment:  The U.S. Chamber of Commerce and other business groups failed to show that the National Labor Relations Board’s recent final rule aimed at expediting the union election process is unconstitutional and violates federal labor law, a federal judge has ruled.

The groups’ “broad” and “dramatic” statements about the NLRB’s rule were “predicated on mischaracterizations of what the final rule actually provides,” U.S. District Judge Amy Berman Jackson of the District of Columbia said.

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The judge granted the board’s motion for summary judgment, upholding the union election rule that went into effect in April.

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The new rule, which the NLRB says is meant to modernize and simplify the union election process, implements changes to election procedures, including elimination of an automatic 25-day waiting period between when the NLRB issues an election directive and when the election can take place.

Employment attorney Bob Riegel of Buchanan, Ingersoll & Rooney, who was not involved in the suit, said the ruling will have an immediate impact, although he expects the groups to appeal.

According to Riegel, the narrow timeframe for elections will remain in place, as will “more aggressive” union organizing activities.

“The decision has the effect of keeping intact the final rule’s impact on an employer’s ability to implement a comprehensive (and more likely effective) campaign expressing its views regarding what union representation will mean to its employees and to debunk any misinformation being disseminated,” Riegel said.

Judge Jackson’s decision marks the second time a federal court has upheld the NLRB’s election rule against challenges.

In a suit by several Texas business groups, the U.S. District Court for the Western District of Texas on June 1 ruled the NLRB had acted within its broad authority in creating the election rule and was not favoring unions. Associated Builders & Contractors of Tex. et al. v. NLRB, No. 15-026, 2015 WL 3609116 (W.D. Tex., Austin Div. June 1, 2015).

That ruling is currently on appeal in the 5th U.S. Circuit Court of Appeals. The National Federation of Independent Businesses, a plaintiff in the suit, filed a brief Aug. 10 urging the appeals court to invalidate the rule.

“Despite the NLRB’s statutory charge to act as a ‘neutral arbiter,’ their new election rules heavily favor unionization over businesses,” said NFIB Small Business Legal Center Executive Director Karen Harned in a statement responding to the ruling.

‘Ambush’ rule
The Chamber of Commerce suit was consolidated in April with a similar suit filed by building contractor Baker DC LLC and a few of its employees.

The plaintiffs in both suits alleged the rule, which critics call an “ambush rule,” violates employers’ First and Fifth Amendment rights of free speech and due process by reducing their time to campaign against unionization and to file legal challenges to an election.

While the rule does not set a maximum or minimum number of days between when a union election is requested and when it actually takes place, the business groups said the procedural changes could result in an election within 14 days, instead of the current average of nearly 40 days.

The NLRB filed a motion for summary judgment, saying the new rule is not “arbitrary and capricious” as the business groups claim but instead was based on the best practices of the regional NLRB offices in conducting union organizing elections.

According to the NLRB, employers will have many opportunities to express their views under the proposed rule. The plaintiffs’ 14-day election scenario is “far-fetched” and is unlikely to occur unless the parties agree to such an expedited process, the board said.

Federal agency given deference

In granting summary judgment in the NLRB’s favor, Judge Jackson called the plaintiffs’ assertions “conclusory and argumentative.”

She said she had little success during oral arguments in trying to get the plaintiffs’ attorneys to explain how specific aspects of the rule violated specific provisions of the National Labor Relations Act and the Constitution.

Instead, the plaintiffs misleadingly quoted excerpts of statutory language and legislative history, she said.

“On its face, the final rule does not necessarily lead to the outcomes to which plaintiffs object, because it accords the board’s regional directors considerable discretion to apply its provisions in a manner that is appropriate to individual circumstances,” Judge Jackson said.

She said she found no reason to reject the NLRB election rule. In cases involving a federal agency’s ability to create rules under its domain, the court will give deference to that process and the mandate Congress has given the agency, the judge said.

The National Labor Relations Act was enacted “to facilitate the free flow of commerce ‘by encouraging the practice
and procedure of collective bargaining and by protecting the exercise by workers of … self-organization, and designation of representatives … for the purpose of negotiating the terms and conditions of their employment,’” Judge Jackson said. “And in enacting that statute, Congress authorized the board ‘to make, amend, and rescind … such rules and regulations as may be necessary to carry out [those] provisions.’”

U.S. Chamber of Commerce et al. v. National Labor Relations Board, No. 15-00009, 2015 WL 4572948 (D.D.C. July 29, 2015).