Last week, the U.S. Chamber of Commerce filed a lawsuit challenging the National Labor Relations Board’s (Board) rulemaking that changed union representation election procedures, which we first reported on December 15 of last year. In the lawsuit, filed in the U.S. District Court for the District of Columbia, the Chamber of Commerce asks the court to deem the rule unlawful and set it aside because it violates the National Labor Relations Act, the Administrative Procedure Act, and the First and Fifth amendments of the Constitution of the United States.
The Chamber of Commerce is joined by the Society of Human Resource Management (SHRM), the National Association of Manufacturers, and the National Retail Federation.
The new rule speeds up the union election process, allowing an election to be held as little as 15 days or even fewer after the employer is first notified of an election petition, severely limiting an employer’s ability to challenge aspects of the process prior to the election. Normally, a union election takes place about six weeks after a union files its petition for election.
According to a press release, SHRM is particularly concerned about the rule’s mandate that employers provide their employees’ personal phone numbers and email addresses to labor organizations. The Board’s position is that a union’s interest in having modern methods of communication outweighs employee privacy concerns.
As we reported last month, a union’s likelihood of prevailing in an election decreases as the amount of time an employer has to respond increases. Unions have been known to begin organizing campaigns without the employer’s knowledge, and sometimes the employer only hears about the unionization effort after the petition for an election has been filed. By then, the union has had time to communicate its message for months, unbeknownst to the employer. Because of this decision, employers may struggle to communicate their message to their employees adequately prior to the date of the union election.