Chamber States Its Case Against NLRB In Challenge to Election Rule Amendments

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By Lawrence E. Dubé

Feb. 6 — The U.S. Chamber of Commerce and four other business groups Feb. 5 asked a federal district court in Washington to grant them summary judgment in a lawsuit challenging the National Labor Relations Board's adoption of rule changes in union representation cases.

In a brief filed in the U.S. District Court for the District of Columbia, the Chamber called the rule changes arbitrary, inconsistent with the National Labor Relations Act, and menacing to the free speech rights of employers under the NLRA and the First Amendment.

The groups also challenged the board's requirement that employers release workers' personal e-mail addresses and telephone numbers prior to secret-ballot representation elections conducted by the NLRB.

NLRB Rule Changes Under Attack

The board adopted the final rule changes in December 2014 on a 3-2 vote, with Chairman Mark Gaston Pearce (D) and Member Kent Y. Hirozawa (D) and then-Member Nancy J. Schiffer (D) voting in favor of the regulatory amendments and Members Philip A. Miscimarra (R) and Harry I. Johnson (R) dissenting (79 Fed. Reg. 74,308).

The Chamber, joined by the Coalition for a Democratic Workplace, National Association of Manufacturers, National Retail Federation, and Society for Human Resource Management, filed their lawsuit Jan. 5.

A second challenge to the rulemaking, filed Jan. 13, is pending in the U.S. District Court for the Western District of Texas (Associated Builders & Contractors of Texas, Inc. v. NLRB, No. 15-cv-26 (W.D. Tex.)).

Board Action Challenged as Inconsistent With NLRA

In the motion for summary judgment, the Chamber argued that the board's rule changes conflict with the NLRA by striving for “quickie elections” that would result in “curtailment of robust debate and free speech; limitations on the scope of pre-election hearings and the type of evidence that may be taken in those hearings; allowance of ultra vires decision-making and recommendations by hearing officers; and imposition of unequal burdens on employers.”

The motion contends that by allowing hearing officers to exclude evidence regarding “fundamental issues,” the NLRB's amended rules clash with the board's statutory obligations.

In particular, the Chamber argued, Section 9(c)(1) of the statute, 29 U.S.C. § 159(c)(1), requires the NLRB to conduct an “appropriate hearing” before directing a representation election. The board's decision to leave some issues for resolution after an election is inconsistent with Section 9(c)(1), the business groups wrote.

Free Speech Rights Require ‘Sufficient Time.'

The Chamber asserted in its legal brief that the board is limiting the time before union representation elections without a demonstrable need to do so.

The business groups argued that the board's modified election procedures will interfere with the statutory and constitutional rights of employers to express their views before employees vote on union representation.

The business groups argued that the rule changes conflict with the NLRA by striving for “quickie elections” that would result in “curtailment of robust debate and free speech; limitations on the scope of pre-election hearings and the type of evidence that may be taken in those hearings; allowance of ultra vires decision-making and recommendations by hearing officers; and imposition of unequal burdens on employers.”

Quoting from the NLRB minority's dissent from the rulemaking action, the Chamber wrote that the free speech right of employers under Section 8(c) and the First Amendment “only has meaning if there is sufficient time for the parties to communicate with employees about the choice of representation.”

Disclosure of Employee Data Called Arbitrary

The business groups told the court the NLRB also acted arbitrarily in adopting its new requirement that employers add employees' personal phone numbers and e-mail addresses to voter lists that are released to unions before NLRB elections.

Calling the requirement an infringement on employees' privacy rights, the Chamber argued that the board unreasonably failed to include an opt-in procedure that would limit disclosures to the employees who have expressed their consent.

The business groups are asking Judge Amy Berman Jackson to vacate the rule changes, which are scheduled to go into effect April 14. The NLRB has not yet filed a response to the lawsuit or the Chamber's motion for summary judgment.

Allyson N. Ho, Charles I. Cohen, Michael W. Steinberg, Jonathan C. Fritts, and David R. Broderdorf of Morgan, Lewis & Bockius LLP, and Kathryn Comerford Todd, Tyler Green, Steven P. Lebotsky, and Warren Postman of U.S. Chamber Litigation Center Inc. filed the motion for summary judgment.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the motion and supporting legal memorandum is available at http://www.bloomberglaw.com/public/document/CHAMBER_OF_COMMERCE_OF_THE_UNITED_STATES_OF_AMERICA_et_al_v_NATIO/1.