Challenge to Latest NLRB Ruling Going to Court

For the second time in roughly three years, TRSA is joining its coalition partners in filing a lawsuit seeking to block the National Labor Relations Board (NLRB) from implementing regulatory changes in its procedures for union representation elections.

The Coalition for a Democratic Workplace in which TRSA is a member, alleged in the lawsuit that the rule changes adopted by a divided NLRB on Dec. 15, 2014, are “sweeping” measures that would “needlessly” accelerate the conduct of representation elections.

The regulatory changes violate the statutory and constitutional rights of employers to express their views before workers decide whether to be represented by unions, the business groups claimed.

The complaint alleged the board's rule should be set aside as a violation of the First Amendment of the U.S. Constitution and the free speech provision of the National Labor Relations Act. The business groups also alleged the NLRB's “arbitrary and capricious” changes deprive employers of due process in NLRB proceedings.

The board adopted the final rule changes on a 3-2 vote, with Chairman Mark Gaston Pearce (D) and Member Kent Y. Hirozawa (D) and then-Member Nancy J. Schiffer (D) voting in favor of the regulatory amendments and Members Philip A. Miscimarra (R) and Harry I. Johnson (R) dissenting.

In a Dec. 12 statement announcing the final rule, the board said that it:

• provides for electronic filing and transmission of election petitions and other documents;
• ensures that employees, employers and unions receive timely information they need to understand and participate in the representation case process;
• eliminates or reduces unnecessary litigation, duplication and delay;
• adopts best practices and uniform procedures across regions;
• requires that additional contact information (personal telephone numbers and e-mail addresses) be included in voter lists, to the extent that information is available to the employer, in order to enhance a fair and free exchange of ideas by permitting other parties to the election to communicate with voters about the election using modern technology; and
• allows parties to consolidate all election-related appeals to the Board into a single appeals process.
   

Pearce said in the statement the rule changes should simplify and streamline the processing of representation cases. “With these changes,” he said, “the Board strives to ensure that its representation process remains a model of fairness and efficiency for all.”

However, TRSA along with coalition partners have complained since the NLRB first proposed representation case rule changes in 2011 that the modifications proposed by the board would unfairly affect employers by limiting the time they would have to express their views during union organizing campaigns leading up to NLRB-supervised elections.

The original proposal to change the board's rules, approved in December 2011 by Pearce and then-Member Craig Becker (D) was promptly challenged in a December 2011 lawsuit. Implementation of the final rule was blocked when Judge James E. Boasberg invalidated the NLRB rulemaking action, finding the board's records did not show that three members had approved the rule. The NLRB appealed Boasberg's ruling, but later dismissed the appeal and rescinded the rule changes.

But in February 2014, the board issued a new notice of proposed rulemaking on rule changes that it called “in essence, a reissuance” of the earlier proposals and eventually adopted the proposal with some modifications that included a mandatory workplace notice posting to occur after the filing of a representation petition.

In the new challenge to the board's rulemaking action, the coalition groups quoted the dissenting views of Miscimarra and Johnson that the final rule “manifest[s] a relentless zeal for slashing time” from pre-election procedures “at the expense of employees and employers who predictably will have insufficient time to understand and address relevant issues.”

The lawsuit asserted that the board's adoption of measures supposedly aimed at streamlining representation cases is inconsistent with the board's statutory duty under Section 9(c)(1) of the act to investigate representation petitions and “provide for an appropriate hearing upon due notice.”

The complaint also alleges that by unreasonably limiting the time between the filing of a petition and conduct of an election, the board is acting inconsistently with Section 8(c) of the NLRA, which protects an employer's freedom of speech.