Business Groups File Suit Seeking To Prevent NLRB “Quickie Election” Rule From Taking Effect

On January 5, 2015, the U.S. Chamber of Commerce and other business groups, including the Society for Human Resource Management, filed a lawsuit in the U.S. District Court for the District of Columbia asking the Court to prevent the National Labor Relations Board (“NLRB” or “Board”) from implementing its new “quickie election” rules. Those rules are currently set to take effect on April 14, 2015.

The lawsuit makes several legal arguments, including each of the following: (1) the new rule violates the First Amendment to the U.S. Constitution by unduly infringing on the employer’s free speech rights; (2) the new rule violates the Fifth Amendment to the U.S. Constitution because it effectively deprives employers of due process in the Board’s election process; (3) the new rule violates the National Labor Relations Act’s mandates that the Board provide employees full freedom in the exercise of their rights, and that the Board oversee elections in a manner that gives due regard to the rights of employees and employers; and (4) the new rule violates the Administrative Procedure Act (a law that governs agency’s rule making and other activities) because the rule is arbitrary and capricious in that, among other things, the sweeping changes it implements are not justified by the Board’s own statistics.

The lawsuit asks the Court to enter an injunction that prevents the NLRB from implementing the new rule. Interestingly, given that the rule is set to take effect in April of this year, the suit does not request a preliminary injunction enjoining enforcement of the rule during the pendency of the case. At this time, it is unclear whether the parties will seek, or the Court will put in place, procedures to have the claims heard quickly. It is also possible, but we believe doubtful, that the NLRB will delay implementation of the new rule pending resolution of the lawsuit.

The legal arguments raised in the case have some appeal, but are far from “slam dunk” contentions. It will be very interesting to see the reception they receive from the Court. Stay tuned, as more developments are sure to come on this important issue.