The National Labor Relations Board has won a second legal victory in connection with its “quickie” election rule.

U.S. District Court Judge Amy Berman Jackson has rejected arguments raised by the U.S. Chamber of Commerce and other business groups seeking to invalidate the rule for exceeding the Board’s authority under the National Labor Relations Act and for violating the Administrative Procedures Act and the First and Fifth Amendments to the U.S Constitution.

The rule, which went into effect on April 14, 2015, effects twenty-five changes to the procedures governing the election of union representatives for collective bargaining purposes. One of the most significant and criticized changes is the shortening of the time in which union elections are conducted. The Board claims the new rule will “modernize the representation case process and fulfill the promise of the National Labor Relations Act.”

The Chamber, which sought to invalidate the entire rule, claimed the “sweeping changes to the election process…sharply curtails employers’ statutory, due process and constitutional rights;” however, objections were raised only to certain provisions of the rule, including, among others: (1) the requirement that employers post and distribute a “Notice of Petition for Election” following the filing of an election petition by a union; (2) the restriction on the right of employers to introduce evidence on eligibility to vote or unit inclusion issues; (3) the requirement that the employer file an extensive written statement of position before the date of the pre-election Board hearing; (4) the increased amount of contact information employers must disclose to the union about their employees ; and (5) the elimination of mandatory post-election Board review through stipulated election agreements.

Judge Jackson rejected each of these concerns in her 72-page opinion, characterizing them as “dramatic pronouncements…predicated on mischaracterizations of what the Final Rule actually provides….” Arguments under the APA also were dismissed “[g]iven the level of deference that applies [to such cases] particularly in the labor context” and Judge Jackson’s finding that “the Board engaged in a comprehensive analysis of a multitude of issues relating to the need for and the propriety of the [rule]….”

Judge Jackson concluded that while the Chamber’s “policy objections may very well be sincere and legitimately based…in the end, this case comes down to a disagreement with choices made by the agency entrusted by Congress with broad discretion to implement the provisions of the NLRA and to craft appropriate procedures.”

Judge Jackson’s opinion comes less than two months after the U.S. District Court for the Western District of Texas also dismissed a parallel challenge in favor of the Board. Associated Builders & Contractors of Tex., Inc. v. NLRB, No. 1-15-CV-026 RP, 2015 WL 3609116 (W.D. Tex. June 1, 2015). The Texas decision has been appealed to the United States Fifth Circuit Court of Appeals. Briefing is scheduled to commence in August 2015. It is likely the Chamber will follow suit and appeal the unfavorable decision to the United States Court of Appeals for the District of Columbia .

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Photo of Howard M. Bloom Howard M. Bloom

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.

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 campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice 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.