Bringing the Fight to NLRB: NFIB Appeals Decision on Ambush Election Rule

Date: August 11, 2015

Earlier this year, a federal district court in Texas issued an opinion approving of the National Labor Relations Board’s (NLRB) ambush election rule. That was a controversial decision to say the least, and the National Federation of Independent Business (NFIB) immediately vowed to appeal the ruling. Now, before the Fifth Circuit Federal Court of Appeals, NFIB has renewed its attack on the ambush election rule.

As our Executive Director, Karen Harned, put it in a NFIB press release earlier this morning:

“Despite the NLRB’s statutory charge to act as a ‘neutral arbiter,’ their new election rules heavily favor unionization over businesses. By accelerating the election process, the NLRB is depriving both employees and employers of their Constitutional rights.  Employers now have no time to adequately communicate to their employees about the implications of unionization, and employees are forced to make an uniformed decision about an important workplace matter.”

NFIB’s brief lays out a strong case for why the federal courts should ultimately invalidate the ambush election rule. For one, there can be no serious question that NLRB’s accelerated timeline for union elections plays to the advantage of unions by essentially preempting any opportunity that a small business might otherwise have to educate employees on the full impacts of unionization. And that not only impedes the First Amendment right of employers to contest unionization efforts, but also unfairly disadvantages employees who may be concerned about the impacts unionization, or who have not had a full opportunity to consider those impacts.

The brief points out that Congress expressly amended the National Labor Relations Act for the purpose of clarifying the right of employers to have pre-election hearings—which NLRB’s rules likewise curtail. The indisputable purpose of those amendments was to expressly rein-in the NLRB because Congress was concerned about NLRB adopting pro-union election rules. The whole point was to level the playing field, so as to ensure that employers would have a fair opportunity to educate employees and so that employees would have a full opportunity to weigh the competing benefits of working in an open shop or a union shop. Congress ultimately overrode President Truman’s veto, to make clear employer rights, because there was so much concern over NLRB’s perceived pro-union bias at the time.

Even President John F. Kennedy—at the time a Senator—weighed in to make clear that employers should have at least 30 days to respond to a petition for a union election. But under NLRB’s ambush election rules, businesses have been forced to respond to unionization elections in as few as 15 days. That’s hardly enough time to secure labor counsel—let alone engage in any meaningful dialogue with employees.

In addition, to renewing our challenge to NLRB’s ambush election rule, NFIB is also challenging other aspects of NLRB’s recently adopted rules—including provisions that require employers to hand over sensitive information on their employees. As NFIB argues in its brief to the Fifth Circuit, Congress has enacted privacy laws specifically to prevent such mandates. And of course, this line of argument is consistent with arguments NFIB Small Business Legal Center advanced in the Eighth Circuit Federal Court of Appeal earlier this spring—in challenging EPA’s plans to disclose information that it has illegally collected on thousands of farmers throughout the country (including GPS locations, home telephone numbers, personal email addresses, estimates on the size of farms and how many animals farmers have on site).

For more on NFIB’s efforts to push back against the ambush election rule, check out Elizabeth Milito’s testimony before Congress. And for more on NFIB Legal Center’s efforts to protect the privacy rights of farmers, check out our earlier release on American Farm Bureau Federation v. EPA.

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