by Tammy Binford
The Board’s action, announced on December 12, represents the second time the controversial regulation—dubbed the “quickie” or “ambush” election rule by detractors—has been advanced. In June 2011, the changes were proposed, but they were struck down in 2012 because only two members participated in the vote.
The vote on the representation election was expected before Democratic member Nancy Schiffer’s term expired on December 16 so that the rule would be in place before NLRB membership potentially fell to four members—two Republicans and two Democrats. Such a Board was unlikely to produce a majority vote.
As it turned out, another Democrat, Lauren McFerran, was confirmed to fill the vacancy in a December 8 Senate vote before the end of Schiffer’s term.
Effect of new rule
Foes of the election changes claim they tilt the playing field in favor of unions and deprive management of time necessary to present its side in a union campaign. The new rule shortens the time between the filing of an election petition and the election, provides for electronic filing of election petitions and other documents, and delays legal challenges until after an election has been held.
The new rule also requires employers to provide a statement of position early in the process identifying the employer’s stand on various issues as well as lists of a potential bargaining unit’s employees and their contact information. Issues not raised in the position statement would be waived in any NLRB hearing challenging the election.
Attorneys from the Armstrong Teasdale LLP law firm in Missouri call the final election rule a blow to employers. “The rules will have the practical effect of eliminating the historic 42-day campaign period [and] provide greater access to employee personal contact information and in short are designed to allow unions to get to an election faster and prevent employers from mounting an effective informational campaign as they have done under the traditional 42-day period,” the law firm said in a December 12 client alert.
The Armstrong Teasdale alert gives the following explanation of what the rule requires:
- Preelection hearings will be held within eight days of a petition being filed (compared to the traditional 10- to 14-day period).
- Employers must submit a statement of position outlining issues in the hearing at least one business day prior to the hearing (completely new).
- Employers must submit a list of prospective voters’ names, job classifications, shifts, and work locations at least one business day prior to the hearing (completely new).
- Only issues necessary to determine whether it is appropriate to hold an election will be litigated in a preelection hearing.
- Elections will not be automatically delayed for 25 to 30 days to allow for NLRB review of any request for review of a regional director’s decision and direction of election as they were previously.
- Employers will be required to submit a final and accurate list of eligible voters’ personal phone numbers, e-mail addresses, and home addresses within two business days of the regional director’s approval of an election agreement or decision directing an election (was seven days and limited to names and home addresses).
The new rule is expected to make unionization campaigns easier. A statement from attorneys at The Kullman Firm in Jackson, Mississippi, says the NLRB has been searching for ways to help unions end their declining numbers in private-sector membership.
“The NLRB’s theory now seems to be that unions will have a better chance if employers have no time to respond,” the law firm says. “Assuming the rule becomes final, all employers will need to be more proactive in their approach to unionization.”
The new rule was to be published in the Federal Register on December 15. Barring a legal challenge, it will take effect on April 15, 2015.
Rule faces opposition
Business interests are vowing a fight. On December 11, National Association of Manufacturers President and CEO Jay Timmons delivered a video statement saying the new rule will “trample the rights of American workers and job creators everywhere.” He went on to say the measure “is driven purely by politics” and “will hurt the people that it claims it’s trying to protect.”
Timmons also said the rule “seeks to fix a problem that doesn’t exist—since the Board’s own data show that they’ve met their goals to complete elections within the time prescribed for the past 10 years.” He said the Board should be “a fair arbiter of the law, not a supporter of a partisan agenda.”
“That’s why the National Association of Manufacturers has all options on the table, including litigation, to prevent the expected rule from taking effect,” Timmons said. “If we need to go to court, we’re going to do so—to protect manufacturers and our employees —and all Americans—from the NLRB’s extreme agenda. There’s going to be more coming from us soon—you can count on that.”
The U.S. Chamber of Commerce also is ready to fight the new rule. “Over the last several years, the NLRB’s activist majority has proved that it has little interest in acting as a neutral arbiter of labor disputes and instead wants to use its power to promote unions,” according to a statement. “The ambush election rule represents yet one more example of that agenda, an agenda that has all but destroyed the Board’s credibility.”
Others support rule
The Board’s action also has drawn praise. AFL-CIO President Richard Trumka called the changes to the election process “modest but important.”
“Too often, lengthy and unnecessary litigation over minor issues bogs down the election process and prevents workers from getting the vote they want,” Trumka said. “We commend the NLRB’s efforts to streamline the process and reduce unnecessary delay.”
The rule passed 3-2, with the three Democratic members—Chairman Mark Gaston Pearce, Schiffer, and Kent Y. Hirozawa—approving it and the two Republican members—Philip A. Miscimarra and Harry I Johnson III—dissenting.
After the Board’s action, Pearce said he was “heartened” by the changes that he says “will modernize the representation case process and fulfill the promise of the National Labor Relations Act [NLRA].”