Today, the National Labor Relations Board (NLRB) announced its intention to reissue a Notice of Proposed Rulemaking (NPRM) for what has become known as the “ambush election” rules governing the procedures for union representation elections. Thus, once again the NLRB will pursue rulemaking to bring about “quickie” union elections, reducing the time available for employers to help employees obtain the information they need to make an informed decision about unionization, and making union representation campaigns far easier for unions to win. The NLRB said the full NPRM would appear in the February 6, 2014 Federal Register.
The Board’s earlier attempt at rulemaking for a “scaled down” version of the rule failed due to the lack of a quorum when the Board withdrew its appeal pending before the U.S. Court of Appeals for the District of Columbia Circuit. It did not take the Board very long, however, to reissue the proposed rule, this time in the more robust version that was originally proposed in June of 2011.
According to an NLRB press release, which was designed to justify the need for the rule: “The proposals are intended to enable the Board to more effectively administer the National Labor Relations Act.” According to the Board’s majority, these changes are purportedly aimed at “modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay.” As expected, approval for reissuance of the proposed rule was along party lines with Members Pearce, Hirozawa, and Schiffer approving and Johnson and Miscimarra dissenting.
New “Ambush Election” Rules Mirror the NLRB’s Originally-Proposed Rule
Among the proposed changes are the following:
The NLRB invites comments on the proposed amendments. The deadline for comments is April 7, 2014. Comments may be submitted electronically at regulations.gov or via mail. In addition, the Board will hold a public hearing during the week of April 7 at which members of the public may address the proposed amendments.
Effect of the New Rules
When the NLRB initially issued its NPRM to change its union representation election rules on June 22, 2011, then Board Member Brian Hayes (who is now an Ogletree Deakins shareholder) wrote a strongly-worded dissent to the proposed changes. Former Member Hayes commented, "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." According to Member Hayes, "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 same could be said for the new rules.
Note: This article was published in the February 5, 2014 issue of the National eAuthority.