Big business again sues labor board over union election rules

WASHINGTON – Here we go again. Business groups are suing the National Labor Relations Board over the new union election rules it finalized in December.

The corporate interests, led by the Chamber of Commerce but also including the National Association of Manufacturers and the National Retail Federation, argue this time that the NLRB illegally imposed the rules because the rules “impermissibly limit the right of all parties” – in other words, companies – “to engage in protected speech at precisely the time when their free speech rights are most important.”

Other corporate interests that sued the NLRB are the so-called Coalition for a Democratic Workplace, a business front group, and the lobby for personnel officers.

Unions strongly support the NLRB’s decision. When the board approved the final rule, by a 3-2 party-line vote in December, AFL-CIO president Richard Trumka, who has a law degree, hailed the move.

“The modest but important reforms to the representation election process” the board announced “will help reduce delay in the process and make it easier for workers to vote on forming a union in a timely manner,” he said then.

“Too often, lengthy and unnecessary litigation over minor issues bogs down the election process and prevents workers from getting the vote they want.  We commend the NLRB’s efforts to streamline the process and reduce unnecessary delay.

“Strengthening protections for workers seeking to come together and bargain collectively is critical to workers winning much-deserved wage gains and improving their lives.”

The business lobbies’ lawsuit is the latest act in a long-running war over the NLRB’s power to manage union recognition election procedures. Supported by the AFL-CIO and other unions, the board is trying – for a second time – to allow electronic filings of all documents, to consolidate all hearings about who has the right to vote in the elections into one session, and to have the elections held with fewer of the delays employers routinely use to deny workers their representation rights.

The business lobbies claimed elections are already quick. And they cloaked themselves in the garments of allegedly protecting their own workers’ rights. 

The corporate interests declared in their Jan. 5 filing that “by rapidly and needlessly accelerating the election process, the (NLRB’s) final rule improperly shortens the time needed for employees to understand relevant issues, compelling them to ‘vote now, understand later.'”

“In doing so, the final rule is contrary to common sense, contrary to the National Labor Relations Act and its legislative history, and contrary to other legal requirements directed to the preservation of employee free choice, all of which focus on guaranteeing enough time for making important decisions,” the business lobbies contend.

But what the lobbies, especially the personnel managers, are really scared of is buried deep in their court papers: That when unions do finally get to contest elections, unions win.  They even admit it: A 70 percent win rate, the lobbies claim. The NLRB’s rules, by speeding up the process – or so the business lobbies say – would make union wins more likely.

“The vast majority of employees” of the businesses the lobbies represent “are not currently represented by a union.  There are, however, active union organizing campaigns involving employees of many of the businesses” the lobbies speak for, the personnel managers in particular admitted. 

Those businesses expect the workers – and the unions that want to represent them –  “will file election petitions soon after the final rule becomes effective on April 14, 2015, and all subsequent elections will be governed by the final rule’s expedited procedures.” 

The elections, the lobbies say, will “injure” the businesses because they’ll have less time to “communicate” – their word – with workers.  Business communication, as data from NLRB  cases shows, includes intimidation, spying, firings, harassment, “constructive discharge” and threats to close or move, among other methods of labor law-breaking.

“The NLRB’s rule abandons over a half century of successful elections to put the demands of politically powerful unions ahead of employees’ rights to make informed choices and employers’ rights to due process and free speech,” the business lobbies claimed in a statement by Josh Ullman, lawyer for the front group. “This rule was designed to reduce, rather than increase, information for employees.”

Congressional Republicans had chimed in when the NLRB issued the rule on Dec. 12. Right Wing House Education and the Workforce Committee chairman John Kline, R-Minn., blasted the “Obama board” for “ambush elections,” and new Senate Labor Committee Chairman Lamar Alexander, R-Tenn., joined that statement.

The business groups beat the board on the new rules the first time, several years ago, because the board then did not have a proper quorum to pass the measures.

The NLRB had no immediate comment on the business lobbies’ suit.  No court date has been set for it.