NLRB Moves to Implement “Ambush” Election Rule
Breaking News: Last week, the National Labor Relations Board (NLRB) announced that it’s moving to shorten the length of time in which a labor union certification election is held.
The Basics: According to the Board, this new rule would:
- 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
- Consolidate all election-related appeals to the Board into a single post-election appeals process.
Impact on Employers: Currently, the average time between when a union files a representation petition—the first step in organizing a workplace into a union—is 38 days, but this new rule would reduce that to as few as 10 days. Consequently, unions could launch guerrilla-organizing campaigns that, because of the compressed timeline, deny management its legal right to discuss with their employees whether a union has anything worthwhile or constructive to offer them or the company.
As noted in a letter from the U.S. House of Representatives labor committee to NLRB chairman Mark Gaston Pearce, a former union attorney, “[t]his rule will seriously limit employer free speech and undermine employee free choice.” The NLRB announcement also drew criticism from business groups such as the National Retail Federation.
Furthermore, employers need to be concerned about the impact on their employees’ privacy. As unions are exempt from some state laws against stalking or trespassing when their members are engaged in organizing activities, as a report from the U.S. Chamber of Commerce revealed in 2012, questions as to how and to what extent unions will use employees’ personal information remain unanswered.
What’s Next: The Board will be accepting public comments on the new proposed rulemaking through April 7, 2014. The Board will also hold a public hearing during the week of April 7.
Bottom line for Employers: With a clear Democratic majority, the Board will likely move quickly to implement this new rule. However, on March 5, 2014, the U.S. House of Representatives Education and Workforce Committee will be holding a hearing on the ambush election proposal. We will continue to keep you updated as the NLRB continues to push its pro-union agenda.