NLRB Ambush Election Rules - They're Back

Document created by 1050210 on Oct 30, 2014
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Published Date: 02/10/2014

 

The National Labor Relations Board (NLRB) announced on February 5, 2014 its plan to reissue a Notice of Proposed Rulemaking (NPRM) for what has been referred to as the Ambush or Quickie Election Rule. This proposed rule, which could significantly change key provisions of union election procedures was originally issued in 2011. The rule was challenged in court primarily because there was no NLRB quorum when the rule was voted on (only two Board members voted). The federal district court ruled that in fact there was not the required quorum for a vote and on May 15, 2012 the NLRB agreed to temporarily suspend the rule.

 

Now with the NLRB at full strength (five members), it hasn’t taken long for the agency to reissue/recycle this rule. The NLRB vote to reissue the proposed rule was along party lines with Members Pearce, Hirozawa and Shiffer voting to approve and Johnson and Miscimarra dissenting.

 

Two of the most controversial provisions of this rule are as follows:

 

  • Shortened Election Period – The proposed rule eliminates the current requirement that an election cannot be held sooner than 25 days after the NLRB’s Regional Director issues a Direction of Election. This means that there is a possibility that an election could be held in as few as 10 days, placing employers at a great disadvantage in their ability to tell their side of the story and to adequately communicate to their employees the realities associated with living under a union’s collective bargaining agreement.
  • Additional Employee Information Required – The existing rule requires that an employer provide a list of eligible voters with their full names and current residence addresses to the union prior to the election. The proposal requires the employer to also provide the union with employee email addresses and telephone numbers prior to the election.

 

The NLRB is inviting comments on the proposed rule with a deadline of April 7, 2014. These comments may be mailed or submitted electronically via email at Regulations.gov. The NLRB will hold a hearing during the week of April 7, 2014.

 

Brian Hayes, a shareholder with the Ogletree Deakins law firm, was a Board member when this rule was originally proposed in 2011. Although he was not present during the meeting when the votes were cast to issue the proposed rule, he wrote the following dissent:

 

“In truth, the ‘problem’ which my colleagues seek to address through these rule revisions is not that the representation election process generally takes too long. It is that unions are not winning more elections…Thus, by administrative fiat in lieu of congressional action, the Board will impose organized labor’s much sought-after ‘quickie election’ option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”

 

The NLRB’s announcement of this proposed rule is available on its website at http://j.mp/nl-ee.

 

If you have questions, please contact a member of CAI's Advice & Resolution Team at 919‑878‑9222 or 336‑668‑7746.

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