NLRB Proposes Ambush Election Regulation

NLRB

As I previously noted in a December post, as soon as the National Labor Relations Board settled its lawsuit with the U.S. Chamber of Commerce over its ambush election rule, the NLRB would then reintroduce the union election rule.

This is exactly what happened.

In December, the NLRB agreed to voluntarily dismiss its appeal in the ambush election rule lawsuit. Then on January 5, the NLRB announced a notice of proposed rulemaking to reintroduce its ambush election rule, which would amend union representation procedures. The substance of the rule is unchanged from the 2011 version.

The proposed union representation election reforms include:

  • Allow for electronic filing and transmission of election petitions and other documents;
  • ensure that employees, employers, and unions receive and exchange timely information they need to understand and participate in the representation case process;
  • streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
  • include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
  • consolidate all election-related appeals to the Board into a single post-election appeals process.

These changes exclusively benefit union organizing campaings. Specifically, ambush elections would limit the employers ability to communicate with its employees prior to the union election on the impact of unionization. Also, the rule infringes on worker privacy by requiring employers to provide unions with workers’ contact information (phone and email) before the union has won representation over the workplace.

In addition, to ease the path for unions to organize workplaces, the rule limits the types of issues an employer can raise at a pre-election hearing, such as determining which employees are considered supervisors and which employees constitute a potential bargaining “unit.” These are no longer permitted before the election takes place.

It is well known that the NLRB is introducing this rule at the behest of Big Labor. However, in the NLRB press release announcing the proposed rule, Chairman Mark Pearce’s comments indicate that the proposal is bipartisan and that all members of the NLRB support ambush elections:

The Board is unanimous in its support for effective representation case procedures. I am pleased that all Members share a commitment to constructive dialogue, and we all agree that important issues are involved in this proposed rulemaking.

Yet Pearce’s comments are contradicted in the same NLRB press release, which states that two of the five members of the NLRB did not approve of the regulation: “Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented.”

The public comment period on the union election reforms is open until April 7, 2014.

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