Business groups challenge union election rule in federal court case

A lawsuit filed in U.S. District Court for the District of Columbia seeks to prevent the National Labor Relations Board from implementing its final Representation-Case Procedures rule, which critics contend enables “ambush” elections by limiting the actions of employers responding to petitions of organizing-minded union locals. The rule significantly shortens the period between the time the union files a request for an election with the Board and the time the election is held.


“The NLRB’s rule drastically accelerates the union election process, depriving employers of their right to explain to employees the impacts of unionizing,” says Randy Johnson, senior vice president of Labor, Immigration, and Employee Benefits for the U.S. Chamber of Commerce, lead plaintiff. “Furthermore, we question the need for the regulation given that 95 percent of all elections are now conducted within two months and that unions win more than two thirds of them.”

The final Procedures rule violates the National Labor Relations Act and the Administrative Procedure Act, the lawsuit contends, as well as employers’ free speech and due process constitutional rights. In particular, plaintiffs challenge the Board’s action as impermissibly limiting employers’ rights to communicate with employees about unionization by dramatically shortening the period between the filing of a union election petition and the holding of the election itself.

A similar regulation issued in 2011, and challenged in Chamber of Commerce, et al. v. NLRB on the ground it was invalid due to the absence of a proper Labor Board quorum. “The Chamber already won a legal battle against the NLRB when it issued this rule in 2011, and we will continue to use all available means to push back against the Board’s overreach,” Johnson affirms.

Joining the Chamber of Commerce in the early-January suit are the National Association of Manufacturers, National Retail Federation, Society for Human Resource Management, and the Coalition for a Democratic Workplace. Members of the latter include National Precast Concrete Association, National Ready Mixed Concrete Association, Portland Cement Association, and American Concrete Pressure Pipe Association.