On June 1, the U.S. District Court for the Western District of Texas upheld the National Labor Relations Board’s (NLRB) ambush election, which dramatically alters longstanding union election procedures, invades employee privacy, limits employers involvement during union organizing campaigns, and heavily favors labor unions.
The American Builders and Contractors of Texas (ABC Texas) and the National Federation of Independent Business (NFIB) sought injunctive relief and to vacate the provisions that they argue are unlawful in the lawsuit and “plan to appeal the decision,” according to Karen Harned, Executive Director of the NFIB Small Business Legal Center.
Hopefully, on appeal, a new court will find merit to the plaintiffs, ABC Texas and NFIB, arguments and void this unnecessary rule. It is clear from the lawsuit, the NLRB has overstepped its authority and that the main purpose for implementing the new regulation is to favor labor unions at the expense of employee choice and employer rights.
It is important to summarize the counts against the new Ambush Election rule, which highlight the overreach of the NLRB’s action and lack of respect for the law and intent of Congress (see lawsuit, here):
1. The National Labor Relations Act (NLRA) makes two fairly commonsense requirements during the union election process. One, the NLRB must determine who is eligible to vote in the election prior to it taking place. Two, the Board is required to hold pre-election hearing when questions surrounding the appropriateness of representation arise.
The plaintiffs argue that the new rule violates the NLRA because it “impermissibly restricts employers’ ability to prepare for, present evidence and fairly litigate issues of appropriateness and voter eligibility in petitioned-for bargaining units.”
As stated in the lawsuit, the NLRA was drastically reformed in 1947 under the Taft-Hartley Act because of a fear that NLRB had “adopted election procedures that were not sufficiently neutral to preserve employee freedom of choice with regard to union representation, including an early attempt by the Board to eliminate pre-election hearings.”
During the last major reform to the NLRA in 1959, the Labor Management Reporting and Disclosure Act, Congress “specifically rejected a bill that would have deferred voter eligibility issues to post-election hearings.”
It is clear that Congressional intent demands pre-election hearings and that it is crucial toward securing free and fair elections.
2. A section of the NLRA spells out how to determine the appropriateness of a bargaining unit and requires the NLRB to assure “employees the fullest freedom in exercising the rights guaranteed by this Act.”
A new requirement of the rule demands that employers hand over employee private information–personal telephone numbers and email addresses–to labor unions. Plaintiffs contend that this disturbing violation of workers’ privacy violates employees ability to freely exercise their rights under the NLRA.
3. The NLRA and the Supreme Court of the United States interpretation of the Act favors “uninhibited, robust, and wide-open debate in labor disputes.”
Ambush elections primary goal is to hinder debate during a union election by shortening the period between the time a petition is filed and an election.
4. The last count made by the plaintiffs is the most salient that the “rule is arbitrary and capricious and an abuse of agency discretion within the meaning of the APA.”
With the new rule, the NLRB has reversed longstanding policy without “adequate justification,” which violates the APA.
Unfortunately, the District Court was not swayed by the arguments, with Judge Robert Pitman declaring, “[The] plaintiffs point to nothing in the record which supports their conclusion that the board intended to favor organized labor.”
However, the data tells a different story. Unions win more elections when employees have less time to educate themselves about unionization, which is a main component of the rule to shorten the time a union election takes place. From 2004 to 2014, unions won only 60% of elections conducted in 36 to 42 days but won more than 86% of elections conducted in less than 21 days, according to NLRB data.
Further, it is clear labor unions have been waiting for the new rules to go into effect before filing election petitions. From April 14 to May 14, union election petitions are up 32 percent in the first month with the new ambush election rule in place.
All hope is not lost that the courts will vacate the ambush election rule, with another lawsuit still pending. Yet, the rule is just one symptom of the disease that is the pro-union NLRB. And it was never supposed to be this way because Congress established the NLRB to be a neutral agency that represented the public in labor disputes. Now it is up to Congress to eliminate the Board or significantly reduce its regulatory and judicial power to restore the agency to what it intended it to be–neutral.