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Chapter Two: Lawsuits Filed Challenging NLRB’s New Election Rules

Seeking a declaratory judgment and injunction against enforcement of the National Labor Relations Board’s new “quickie” election rule, on January 13, 2015, the Associated Builders and Contractors of Texas, Inc., Associated Builders and Contractors, Inc., Central Texas Chapter, and National Federation of Independent Business/Texas filed a complaint against the NLRB in the United States District Court for the Western District of Texas.  The suit asserts the new rule violates the National Labor Relations Act, the Administrative Procedures Act, or both. Associated Builders and Contractors of Texas, Inc., et al. v. NLRB, Case No. 1:15-cv-00026.

A similar challenge was filed on January 5, 2015, by the U.S. Chamber of Commerce and certain associations in Washington, D.C. The Chamber’s suit alleges the rule violates the NLRA and the APA, as well as employers’ free speech and due process constitutional rights, among other things.

The NLRB’s so-called quickie election rule is designed to shorten the timeline for Board-conducted elections and to minimize pre-election litigation. The rule is set to take effect on April 14, 2015. Under the rule, NLRB Regional Directors are instructed to schedule elections “at the earliest date practicable” after a petition is filed. This may shorten the election timeline from the current 42 days to as little as 14 days. The rule also will impose substantial pressure on employers seeking to argue their position on the record, as now it must be expressed very early in the representation case process. Employers that do not prepare in advance will be at a real disadvantage in the event an election petition is filed by a union seeking to represent their employees.

In the latest lawsuit, the plaintiffs quote extensively from NLRB Members Johnson and Miscimarra’s dissenting opinions from the rule. The plaintiffs allege that “the new Rule makes sweeping changes and pre-election and post-election procedures that depart from the plain language and legislative history of the Act and exceed the Board’s statutory authority.” The lawsuit identifies the “evident purpose of the changes” – “to achieve the impermissible pro-union objective of accelerating the election process to such an extent that employers will be unable to respond effectively to union organizing campaigns.” It identifies 10 provisions of the rule that violate the NLRA or the APA, such as the improper shortening of the time between the filing of the petition and the first day of a hearing, the requirement that employers file a written and burdensome statement of position before exercising their statutory right to a pre-election hearing, and a bar to litigating and resolving before an electionmost disputes over individuals’ eligibility to vote (including their possible supervisory status) or the inclusion of certain employees or classifications in an appropriate unit.

Until the cases are resolved, employers should prepare as if the rule will go into effect as planned in April.

Jackson Lewis P.C. © 2020


About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.