Businesses Look to Slam Brakes on “Quickie” Election Rule
The United States Chamber of Commerce, Coalition for a Democratic Workplace, National Association of Manufacturers, and Society for Human Resource Management have filed a lawsuit in federal court against the National Labor Relations Board seeking to enjoin a final “quickie” election rule that the Board issued last month. The rule, which seeks to expedite the union election process, will negatively impact businesses that do not have proactive labor relations programs in place by effectively stripping them of their statutory and constitutional rights to speak to their workers about labor unions before an election. Absent a postponement, injunction, or some legislative action that trumps the rule, the rule will take effect April 15.
The lawsuit is just the latest chapter in the quickie election rule saga, whose long and tortured history dates back to 2011, 2012, and 2014. The new rule alters the union election process in numerous ways, but most notably by:
- Expediting Elections. Under the current rule, there typically is a six to eight week period between the filing of an election petition and the election. Although less than ideal, many businesses often address unionization with their work forces only after receiving an election petition and they use the 42 to 56 days to educate their employees about unions so that they can cast an informed ballot come election day. The new rule can drastically reduce the time between the filing of the petition and the election to as little as 14 days, significantly reducing the ability of an employee to cast an informed ballot, given the extremely narrow window employers will now have to respond to the union’s side of the story the employees have been hearing for months (Notably, the latest union election statistics indicate that unions currently win most elections, even under the current rules.)
- Limiting Legal Arguments and the Time to Make Them. The new rule requires companies to submit position statements containing virtually all legal arguments in opposition to an election and local agency rulings within days of receiving the petition or risk waiving these arguments. This short time frame will especially burden employers who have not previously considered their potential arguments.
- Requiring the Disclosure of Employees’ Private Information. The new rule requires employers to provide unions with personnel information that previously did not need to be disclosed, namely, the employees’ personal e-mail addresses and phone numbers, if available, within two business days of the NLRB’s direction of an election.
Companies with questions about the new rule may contact a lawyer in the Gibbons Employment & Labor Law Department.