Authors: C. Thomas Davis (Nashville), Harold P. Coxson (Washington DC)
Published Date: February 5, 2014
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 proposed rule eliminates current procedures providing for pre-election appeals to the Board from the actions of the Regional Director on the election petition and providing instead only for a single, discretionary appeal of pre-election and post-election issues after the votes are cast. An appeal to the Board prior to the election is expressly limited to issues that would otherwise escape Board review entirely if not raised at that time.
The proposed rule eliminates current requirements that a vote cannot be held sooner than 25 days after the Board's Regional Director issues a Direction of Election. As a practical matter, this means that elections will be held sooner after the Direction of Election than was previously the case, although the precise length of time may vary in each case.
The proposed rule clarifies that a pre-election hearing is to determine only whether a question concerning representation exists and that the hearing officer has authority to limit the evidence taken at the hearing that does not have relevance to a genuine issue of fact material to that issue. This means that many issues of individual voter eligibility as opposed to voting unit composition may be deferred to the post-election procedures rather than litigated prior to the vote. The right of parties to file a post-hearing brief to the Regional Director, previously guaranteed under the Board's rules, is now made discretionary with the hearing officer.
The proposed rule requires that a hearing be held within seven days of the filing of a union's representation petition.
The proposed rule allows the union's petition to be filed electronically, changing the current practice that requires filing by hand or regular mail.
The proposed rule requires that the employer prepare and file a comprehensive "statement of position" on the union's election petition no later than the date of the hearing. In addition, it requires that any issues omitted by the employer from its statement be waived by the employer and prohibits the employer from raising these issues later.
The proposed rule requires that unions be given employees' email addresses and telephone numbers prior to the election. Currently, the union receives a list of eligible voters from the employer prior to the election containing the employees' full names and residence addresses but not their email addresses and telephone numbers.
The proposed rule requires that the voter eligibility list be given to the union within two work days of the Direction of Election instead of the current rule allowing seven work days.
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."
After graduating from law school in 1987, Tom Davis began his legal career at Ogletree Deakins and is currently the practice group leader of the firm’s Traditional Labor Practice Group. Mr. Davis represents employers in all aspects of employment law matters with a primary focus on the area of traditional labor law. He assists clients in maintaining union-free work environments through the implementation of cutting-edge, positive employee relations programs and creative leadership education. Mr....
Hal Coxson is a nationally recognized lawyer with over 35 years experience in all aspects of labor and employment law in Washington, DC. He is highly respected for his experience and expertise in government relations and as an advocate on behalf of business clients before Congress, the Executive Branch and independent federal regulatory agencies. He chairs the Firm’s Government Relations Practice Group and is a Principal in Ogletree Governmental Affairs, Inc., the Firm’s wholly-owned...