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Apr 29, 2015

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.

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.