Thursday, August 4, 2011
This isn't unexpected, but we have confirmation that, if the NLRB promulgates something close to what it has proposed in its new election rules, legal challenges will be forthcoming. An official at the Chamber of Commerce has all but promised that the group--no doubt joined by others--will challenge many of the proposed rules. The group appears concerned about the attempt to speed up the election, which would occur by, among things, allowing electronic petition filing, decreasing pre-election challenges, and speeding up administration of elections.
Perhaps I'm being naive, but I don't see much hope for such a suit except to possibly delay the rules' implementation. The Chamber's argument appears to be that faster elections deprive employers their right to express their opinions about unionism. That argument seems really weak as a legal matter because there is no right to an extended period of time of expressing its opinion. Even if a judge isn't sympathetic to the employer coercion concerns underlying these changes, he or she would have to turn a blind eye to decades of administrative law demanding deference in this context. Indeed, courts have repeatedly held that the NLRB is entitled to the most deference when establishing election rules. So, I don't see this as a serious threat to whatever the Board comes out with (unless, of course, some procedural requirement wasn't complied with).
Finally, speaking of required procedures, you can access transcripts and video of the Board's two-day public meeting on the rules here.
Hat Tip: Patrick Kavanagh