Stephen R. McCutcheon, Jr., Attorney at Law
On December 15, 2014, the National Labor Relations Board (“NLRB”) issued its controversial new rule expediting union representation elections. Business and trade organizations, including the U.S. Chamber of Commerce, National Association of Manufacturers, Coalition for a Democratic Workplace, National Retail Federation, and Society for Human Resource Management filed a complaint on January 5, 2015, challenging the new rule.
The complaint alleges that the rule violates the National Labor Relations Act (“NLRA”) and the Administrative Procedure Act, and infringes upon rights protected by the First and Fifth Amendment. In particular, the lawsuit alleges that the NLRB’s rule impermissibly limits employers’ rights to communicate with employees. This contradicts the NLRA’s protection of the expression of views in the election process, and Congress’ favoring of “uninhibited, robust, and wide open debate in labor disputes.”
The also seeks to invalidate the final rule on the ground that it denies employers due process in NLRB proceedings over elections, including preventing employers from ligating fundamental issues such as who is eligible to vote and who will be covered by the bargaining unit prior to the election, and then eliminating the ability of employers to seek NLRB review as a matter of right after the election has been held.