The Ambush Election Rule is Unprecedented and Unlawful, Chamber Argues in Lawsuit
WASHINGTON—Last night, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace sued the National Labor Relations Board (NLRB) to challenge the NLRB’s new “ambush election rule,” which will make it significantly more difficult for employers, especially small employers, to respond to union campaigns. The lawsuit, filed in the U.S. District Court for the District of Columbia, is called Chamber of Commerce, et al. v. NLRB.
“When Congress wisely declined to take up the card check bill, it quickly became clear that the NLRB would work to accomplish the priorities of organized labor through whatever means necessary. This year, Christmas came early for the AFL-CIO, with a huge gift to organized labor from the NLRB,” said Randy Johnson, the Chamber’s senior vice president of Labor, Immigration, and Employee Benefits. “This rule has no conceivable purpose but to make it easier for unions to win elections. While couched in technicalities, the purpose of this regulation is to cut-off free speech rights to educate employees about the effects of unionization. The elimination of these rights has long been on the wish list of organized labor and the Board has dutifully granted that wish today.”
“It is tragic that the Board would expend its resources in this manner, creating more confusion and uncertainty under our nation’s labor laws, aiding only unions and perhaps lawyers, rather than focusing on some type of initiative that would encourage job growth,” said Johnson. “Given that 95% of all elections are now conducted within two months, and unions win more than 67% of those elections, there is clearly no rational justification for this regulation. Unfortunately, this new rulemaking is just one aspect of a set of initiatives pursued by the General Counsel’s office and the Board to ease unionization. I suspect we will see more of the same.”
The Chamber’s lawsuit explains that the National Labor Relations Board’s final “ambush election rule” imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize. The rule drastically speeds up the election process, depriving employers of a fair opportunity to explain to employees the costs of unionizing and curbing employers’ opportunities to bring legal challenges to proposed representation elections. The rulemaking process has been the subject of significant public controversy because of the Board’s rush to issue the rule before board member and former union lawyer Craig Becker’s recess appointment expires on December 31. According to the Chamber’s lawsuit, the rule violates the National Labor Relations Act, the Administrative Procedure Act, the Regulatory Flexibility Act, and free speech and due process constitutional rights. The law firm Morgan, Lewis & Bockius LLP will represent the plaintiffs in this litigation.
“In the board’s rush to get this rule out the door before Becker’s appointment ended, the board ran roughshod over a host of federal statutes,” said Robin Conrad, executive vice president of the U.S. Chamber’s public policy law firm, the National Chamber Litigation Center.
“Not only did the board circumvent its own operating procedures to finalize this rule, but the rule itself short-circuits statutorily mandated safeguards intended to ensure fair elections. The blatantly partisan purpose of this rule is to ensure that employers have no time to talk to their workers about unionizing, and that the only information workers will get will come from the union.”
The National Chamber Litigation Center is the public policy law firm of the U.S. Chamber of Commerce that advocates fair treatment of business in the courts and before regulatory agencies.
The U.S. Chamber of Commerce is the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.