iA federal court in Washington, D.C. has refused to issue a temporary restraining order blocking the National Labor Relations Board’s (“NLRB’s”) new election rules.
On April 15, the day after the new rules went into effect, a union seeking to represent carpenters and laborers working for Baker DC LLC in the Washington, D.C. area filed an election petition with the NLRB. Baker filed a lawsuit to vacate and set aside the rules and asked the District Court to issue a temporary restraining order to halt the representation proceedings. Baker alleged that the NLRB exceeded its statutory authority as well as the Administrative Procedure Act in promulgating the rules. Baker also alleged the new rules, particularly the mandatory posting of a notice upon the receipt of a petition, violated the company’s right to refrain from certain speech and thus violated its due process rights. A few days after the complaint was filed, an amended complaint was filed on behalf of three employees, as well as Baker, alleging that the rules’ new requirement that Baker disclose certain employee personal contact information jeopardized the employees’ privacy rights.
The court refused to restrain the NLRB from proceeding under the new rules. It noted first that the company’s motion addressed only the NLRB’s notice posting requirement and the disclosure of the employee contact information. With respect to both mandates, the court found there was no showing of irreparable harm, an absolute requirement for a temporary restraining order. The court noted that there was nothing in the NLRB rules prohibiting the company from engaging in any speech it desired while the NLRB case proceeded. With respect to the employee contact information, the court noted that not only was the risk to the employees’ privacy merely speculative, but the NLRB’s rules prohibited the union from using the employee information for any purpose other than a representation proceeding. Further, in agreement with the NLRB, the court observed that even if the union prevailed in an election under the new rules, the employer could simply refuse to bargain, forcing the union to file an unfair labor practice charge and enabling Baker to contest in agency complaint proceedings the union’s representative status based on the allegedly flawed election rules, ultimately obtaining judicial review.
This is one of a number of cases challenging the NLRB election rules. The cases in Texas and in Washington, D.C. did not ask for restraining orders and will be decided on the merits of each case. In the meantime, the NLRB “quickie election” rules remain in effect.
