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ABC-Led Coalition Advances Lawsuit Against NLRB “Ambush" Election Rule

The ABC-led Coalition for a Democratic Workplace (CDW), along with co-plaintiff U.S. Chamber of Commerce, Feb. 3 filed a motion in federal court seeking summary judgment in a lawsuit to overturn the National Labor Relations Board (NLRB) “ambush election” rule. 

ABC strongly opposes the “ambush election” rule because it would significantly limit an employer’s ability to educate employees about the pros and cons of union representation. In addition, publication of the rule was muscled through the approval process at an expedited pace by a two-member Democrat majority of the NLRB before recess-appointed Member Craig Becker’s (D) term expired. When the final rule was passed in December 2011, the CDW immediately filed a lawsuit to block the rule. 

In the motion CDW laid out “fatal flaws” with the board’s rule, pointing out that it exceeded the board’s statutory authority and violated the First and Fifth amendments, which guarantee the right to free speech and due process. In addition, the CDW noted that the board members violated the Regulatory Flexibility Act by failing to provide evidence that the rule won’t have a significant impact on small businesses. The motion called the two-member decision improper and “capricious.”  

The CDW also cited former Sen. and President John F. Kennedy, who emphasized that employees need at least 30 days to decide how to vote in NLRB elections. 

“Then-Senator John F. Kennedy said over 50 years ago that employees need time to hear from both sides prior to an election,” said Geoff Burr, CDW chairman and ABC’s vice president of federal affairs. “That was true then and it’s true now. The NLRB rule is unfair to employers and employees, contrary to Congressional intent and needs to be overturned.” 

In response to CDW’s motion, the NLRB filed a motion asking the judge to uphold the regulation.  


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