NLBMDA: April 2015

Business Groups Challenge Reissued Ambush Election Rule

On January 6, five groups representing a diverse set of business interests filed suit in U.S. District Court in Washington, D.C. challenging the National Labor Relations Board (NLRB) and its reissuance of the “Ambush Election” rule, which would significantly shorten the time period between a Union filing a representation petition and a representation election taking place.

In February 2014, the National Labor Relations Board (NLRB) issued a new version of the ambush election rule. The final rule was announced on December 15, 2014 and is scheduled to take effect on April 15, 2015. The suit was filed by the Coalition for a Democratic Workplace (CDW), National Association of Manufacturers, National Retail Federation, and Society for Human Resource Management and U.S. Chamber of Commerce.

CDW and other groups are challenging the rule on the grounds that the NLRB exceeded its statutory jurisdiction and authority, and violated the First and Fifth Amendments to the U.S. Constitution. NLBMDA is a member of CDW.

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If the rule takes effect, the time frame for a Union election could be reduced to as few as 14 days. The new proposed rule is similar to the original rule issued by the NLRB in December 2011. Following a challenge to the first Ambush Election rule in May 2012, the U.S. District Court for the District of Columbia invalidated the original rule, and in December 2013 the NLRB asked for its appeal of that case to be dismissed before withdrawing the rule in January 2014.

In successfully appealing the original ambush election rule, the coalition of business groups won by arguing the board lacked a quorum (at least three out of the total five must be sitting) to make decisions. The Board normally has five members; however, there were only three Board members at the time of the decision (two Democrats and one Republican) on the original final rule; the minimum needed for a quorum and to implement a new rule. The rule was approved with only the two Democratic members of the Board as the Republican member did not participate.

Now, in order to defeat the NLRB a second time on the ambush election rule, the groups challenging the rule will have to argue on constitutional grounds, rather than procedural grounds, to have it invalidated.

Union Election Process Changes and Congressional Response
Changes to the pre-election process under the rule make it easier for employees to form a Union. First, employers are required to state their position on unit issues by the start of the pre-election hearing before any other evidence is accepted. Second, issues related to voter eligibility issues are deferred until after the election. Third, it eliminates any automatic right to post-election Board review of contested issues.

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