Judge Slams ‘Ambush’ Election Rhetoric

     WASHINGTON (CN) – Upholding regulations that streamline unionization procedures, a federal judge chided opponents for misconstruing facts and using disparaging labels.
     Drafted by the national Labor Relations Board last year, the new rules that took effect this past April shorten the amount of time from when a union election is called and when it is held to as little as 14 days.
     The rules also require employers to supply union organizers with workers’ email addresses and telephone numbers, and delay legal challenges by employers until after workers have voted on a proposal to unionize.
     While a Republican attack on the so-called “ambush election rule” proved unsuccessful in Congress, other opponents took to court.
     U.S. District Judge Amy Jackson consolidated legal objections from the concrete contractor Baker DC and another group of challengers led by the U.S. Chamber of Commerce.
     Siding with the NLRB last week, Jackson blasted the challenges for having predicated their cases “on mischaracterizations of what the final rule actually provides and the disregard of provisions that contradict plaintiffs’ narrative.”
     “Ultimately, the statutory and constitutional challenges do not withstand close inspection, and what is left is a significant policy disagreement with the outcome of a lengthy rulemaking process,” the 72-page opinion states. “This is apparent from the Chamber plaintiffs’ heavy reliance upon the dissent to the Final Rule published by two members of the board.”
     Jackson conceded that there is sincerity to the policy objections, but that the doctrine of agency deference supports summary judgment for the labor board.
     The judge was less kind, however, in noting the “conclusory and argumentative” nature of the complaints that the plaintiffs brought.
     “They rely heavily on the repetition of disparaging labels, referring to the Final Rule as the ‘”ambush” or “quickie” election rule’ that compels employees to ‘ “vote now, understand later,”‘ Jackson wrote, quoting a motion by the Chamber of Commerce plaintiffs. “This tendency to speak in broad terms continued well into the parties’ lengthy, but often nebulous, memoranda.”
     Jackson said the court confronted this lack of specificity at a hearing while trying to determine the allegedly illegal provisions of the final rule, and which provisions of the National Labor Relations Act or of the U.S. Constitution these provisions supposedly violated.
     “Counsel resisted being pinned down, insisting that the analysis should be conducted at the 30,000 foot level,” the July 29 decision states. “This may be because when one descends to the level of the particular, the provisions at issue are not quite as described. On its face, the final rule does not necessarily lead to the outcomes to which plaintiffs object, because it accords the board’s regional directors considerable discretion to apply its provisions in a manner that is appropriate to individual circumstances.”
     Looking at each provision of the challenged rule, the court saw no violation of the NLRA or of the Constitution.
     “Nothing in the Final Rule constrains an employer from expressing its own position about the election,” Jackson wrote. “And nothing about the poster, which outlines the Board’s election procedures and accurately sets forth employees’ statutory rights to be free from coercion from either side, undermines or dilutes an employer’s ability to convey its own pre-election message to counteract what it sees as disagreeable government speech.”
     The NLRB did not immediately respond to a request for comment.

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