Small Business to Continue Challenge to NLRB’s ‘Ambush Election Rule’

Date: June 03, 2015

Earlier this week we received a disappointing decision from a federal district court in our challenge the National Labor Relations Board’s “ambush election rule.” This rule radically speeds-up the time-frame for union elections. As we argue in our lawsuit, the problem is that—in speeding-up union elections—the Board has given unions an unfair advantage over businesses.

It is no exaggeration to say that the rule allows union organizers to ambush small business owners. As explained by NFIB Legal Center’s Senior Executive Counsel, Elizabeth Milito, in her testimony before Congress, the ambush election rule accelerates the time-frame for union elections so severely that employers will be hard-pressed to line-up legal counsel before the election. While union organizers will spend months laying the groundwork for the election with a covert unionization campaign, employers must scramble even to respond to a notice of a union election. The result is that unions are almost sure to prevail in elections because employers have no time to educate their employees on the full implications of unionization—including the fact that the unions will demand a portion of their employee’s paychecks. And this is all the more concerning because it denies the employer any meaningful opportunity to exercise the company’s protected First Amendment right to speak-out against unionization.

Of course, the National Labor Relations Board is supposed to be a “neutral arbitrator” between labor interests and management. But, as demonstrated by this rule, and other pronouncements in recent years, the Board is more interested in addressing what it views as the “problem” of depleting union membership than acting as an impartial umpire in legitimate disputes. We have seen this time-and-again. In fact the last time the National Federation of Independent Business challenged NLRB in court, the Board sought to justify its controversial “notice poster rule” on the notion that employers must be compelled to inform employees of their labor rights because unions are no longer as predominant in the workplace as they once were. Of course, in assuming that it’s the Board’s role to step into the shoes of union organizers, that argument revealed NLRB’s pro-union sympathies. And, once more, with the ambush election rule, the NLRB is stacking the deck in favor of union organizers.

But small business owners should take heart in knowing that the NFIB plans to appeal this weeks’s decision to the Federal Court of Appeals for the Fifth Circuit, which is considered one of the more conservative federal appellate circuits. And it should be remembered that NFIB likewise lost in its initial challenge to NLRB’s notice poster rule before ultimately striking the rule down on appeal to the D.C. Circuit. So this fight is far from over.

NFIB’s official statement responding to the decision is available here. And for small business owners looking for practical advice as to how to handle a unionization campaign, check out NFIB’s Guide to Managing Unionization Efforts. And even before you are hit with a notice of an impending union election, it may be a good idea to check out our archived presentation—which explains what you can do proactively to avoid unionization, as well as what you can do once you are hit with an election notice.


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