August 3, 2015

Federal District Court Upholds NLRB “Ambush Elections” Rule

Last Thursday evening, the U.S. District Court for the District of Columbia upheld a challenge by several business groups to the National Labor Relations Board’s (NLRB) “ambush elections” rule, which went into effect this past April. (The decision is available here.) In her decision, the Judge Amy Berman Jackson defended the NLRB process that led to the rule, arguing that it was lengthy and comprehensive, and said the rule did not violate plaintiffs’ constitutional rights. (Read Bloomberg BNA’s full analysis of the decision here.) 

The ruling is not the last step in the legal fight against this rule, of course. The National Association of Manufacturers (NAM) has already filed an appeal and MSCI will continue to support NAM’s efforts, as well as the Coalition for a Democratic Workplace’s (CDW) efforts, to oppose this rule. (See CDW’s statement on the ruling here.

The District Court’s ruling came at the same time another report was released showing this rule has significantly speeded up the pace of union elections. According to The Hill, a new study from the law firm Fisher and Phillips found the average union election process now takes an average 26 days, down from 37 days before the rule took effect. The pace of union elections was not the only concern about this rule, however. 

The new requirements will also erode employee privacy. As former NLRB Board Member Peter Schaumber wrote last week in The Wall Street Journal, (subscription required) “[T]he rule requires an employer to provide union organizers with the personal cellphone numbers and email addresses of its employees before they vote in a union election.” 

Schaumber also discusses the difficulty small businesses may have complying with this rule. He notes, “Without experienced labor counsel, [small businesses] might unknowingly waive their right to challenge issues important to the workplace, such as whether the union is entitled to file a petition and whether the size of the ‘bargaining unit’ – the group of employees the union seeks to represent – is appropriate.”