Court Won’t Give Legal Relief From NLRB’s “Quickie” Election Rule

By Nelson D. Cary and George Stevens

Last Thursday, the National Labor Relations Board won its first courtroom victory in connection with its “ambush” or “quickie” election rule, which went into effect earlier this month.

It was not, however, in one of the two cases that have been pending for some time, and that we have previously discussed.

Instead, the NLRB’s victory came in a new lawsuit filed in federal court in Washington, D.C. In this new case, the employer and three of its employees sought a temporary restraining order (TRO) to prevent the NLRB from applying the provisions of the new rule to an election petition filed by the United Construction Workers Union the same day that the new rule took effect.

The challenge getting a restraining order

The employer – like the trade associations that have brought the other two lawsuits – argued that the rule’s requirement that an employer post a notice of election two days after receipt of the Union’s petition from the NLRB violated its free speech and due process rights. The employer also argued that the compelled disclosure of employee names and personal information violated the employees’ right to privacy.

A TRO is a hard thing to get. A party must demonstrate (among other things) that whatever it is trying to stop will cause concrete, “irreparable harm” in the short term. It was this hurdle that proved fatal to the employer’s request, with the Court quipping “a notice tacked onto a bulletin board, or even posted on a website, can be easily removed.”

The employees’ claims did not fare any better. They argued that their right to privacy would be “irreparably harmed” because their information might be misused or accidentally disclosed to third parties by the union. The Court again disagreed, noting that “this sort of speculative injury cannot form the basis for granting emergency injunctive relief.”

So, what should labor professionals take away from this decision? It is certainly not positive news for employers—after all, it is an NLRB win. But, it is important to remember that TROs are only granted in the most extraordinary of circumstances.

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The NLRB’s union election rule remains in effect

Interestingly, the judge that denied the TRO in this new case is the same judge hearing one of the two previously filed lawsuits against the rule itself. In fact, the judge consolidated this most recent case with the previously filed lawsuit in D.C. and set a hearing on pending motions for May 15, 2015.

The other pending case, in Texas, is proceeding somewhat more quickly. The judge in that case held a motions hearing on Friday.

The bottom line: The NLRB’s rule continues in effect. Labor professionals shouldn’t expect a decision in the D.C. case until sometime after May 15. In the Texas case, a decision is possible sooner. Stay tuned for more developments.

This was originally published on the Vorys on Labor blog.

Nelson D. Cary is a partner in the Columbus office of the law firm Vorys, Sater, Seymour and Pease LLP (VORYS) and is a member of the labor and employment group. He represents management in a broad range of labor and employment matters, including compliance with and defending employers in litigation arising out of the Family and Medical Leave Act, Americans with Disabilities Act, Title VII, Age Discrimination in Employment Act, Fair Labor Standards Act, and similar state laws. He also advises employers on union elections and unfair labor practice proceedings before the National Labor Relations Board and the Ohio State Employment Relations Board, negotiates union contracts, and defends labor contract arbitration proceedings. Contact him at ndcary@vorys.com.

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10 Comments on “Court Won’t Give Legal Relief From NLRB’s “Quickie” Election Rule

  1. On the one hand, business argues that it should have the right to make dilatory objections to delay allowing workers a vote because they think workers need time to think about their vote, but then their lawsuit objections to a speedy posting notice to workers that an election petition has been filed.

  2. Does anyone wonder why business move to China or Mexico as fast as they can? Only in American is the mafia legal, can it destroy your business and strong arm your employees into voting them in as a unions so they can make millions off of union dues as they rape the company bleeding it dry until it dies.

  3. Much ado about nothing. TROs a very hard to get, and not awarded on the merits of the case, but the potential harm allowing events to proceed until a final resolution on the merits. For good or evil, the issue will almost assuredly be determined by the two previous cases(except, of course, the inevitable appeal).

  4. I don’t believe the employer should be allowed to turn over any information on employees without their written consent.

  5. The courts have decided that mugging victims are not to be given time to put on a hard hat before the mugger hits them over the head with a pipe.

  6. no big deal. The company just moves the work to China or Mexico. Even Russia doesn’t treat employers this badly. Did you get the part where the article said it was a win for labor then said a win for the NLRB and loss for the employers. Why do uniones need to even exist if the government plays negotiator for them?

  7. It really comes down to balance. People who want to unionize should be able to do so. People who don’t should NEVER be able to benefit from those workers efforts in gaining a contract. The reason companies send work to china is due to overall costs. Cheaper materials, Cheaper labor, since they don’t care about lead paint of other toxic materials in their product or the abuse of workers, hey why not bring that here? The average worker in china works twice as long and only makes on average 14k a year. They have NO RIGHTS and NO BENIFITS. This is what drives companies to china. Republicans have come out and embraced the Chinese business model. Mitt Romney stated during his presidential election campaign that “you have to admire the Chinese worker, so industrious.” The reality is that Corporations want to drive wages in this country down and remove ALL government checks and balances that prevent toxic materials in the products you buy and remove any oversight of environmental or financial malfeasants. The media arm of the movement, FOX NEWS has done a great job of brain washing people into thinking that unions are the problem and if only corporations could pollute and banks and businesses could do whatever they want to make a buck, well that is capitalism. Now we have the Republicans and Obama finalizing the final nail in the American Worker’s coffin. The Pacific Rim trade agreement will do what NAFTA couldn’t, it will send the last of America’s jobs to the far east. So while you rage against unions, you fail to understand that it isn’t unions you should be outraged at, it is corporations and their corruption of the American electoral process. You cut your nose off to spite your face!

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