NLRB Re-proposes Ambush Election Rules: Proposal Would Deprive Business Owners of Protected Rights

Date: April 02, 2014

The National Labor Relations Board is at it again. Once again the board has proposed an “ambush election” rule that would fast track union elections. The NLRB’s proposed rule would dramatically cut short an employer’s opportunity to learn of, much less respond to, union organizing by reducing the time from petition filing to election from the current median of 38 days to as few as 10 days. Comments on the proposal are due by April 7, 2014.

When the board last proposed the rule in 2011, NFIB and other employer groups sued to stop the proposal. A federal court threw out the rule.  The board has now issued an identical proposal.

“In substance, the proposed amendments are identical to the representation procedure changes first proposed in June of 2011,” the NLRB noted in a release

Amongst other changes the proposed rule would:

•    Permit electronic filing of election petitions, and potentially electronic showing of interest (in other words, dispensing with employee signatures on union cards);
•    Require pre-election hearings be held in as few as seven days of the union filing the petition for election;
•    Require employers draft a “Statement of Position” to be presented at that hearing, which sets forth their position on all relevant legal issues while waiving forever any issue that is not addressed in the Statement;
•    Limit the issues that may be litigated prior to an election, such as determining which employees are eligible to vote, including whether certain employees qualify as supervisors;
•    Require employers provide union organizers with names, home addresses, phone numbers, email addresses, work locations, shifts and job classifications of all employees eligible to vote; and

The new election rules could eviscerate an employers’ ability to communicate with employees about union elections. Unions already win most elections, but accelerated elections means the union will have an even better shot at winning.

In dissenting comments on the proposed rule, board members Philip Miscimarra and Harry I. Johnson III, said, “Yes, this means the election would take place first, and only later would there be a hearing regarding issues as fundamental as: (i) who can actually vote, (ii) which employees who cast votes would, in the end, be excluded from the bargaining unit and would not even have their votes counted, (iii) whether people who represent themselves as employee-voters during the campaign may actually be supervisors (i.e., representatives of one of the campaigning parties), (iv) whether other people who appear to be supervisors may actually be employee-voters, and (v) whether the union-represented workforce, if the union prevails, will ultimately exclude important employee groups whose absence would adversely affect the outcome of resulting negotiations.”

Comments are due April 7, 2014. Business owners are encouraged to submit concerns and objections. For more information, please contact the NFIB Small Business Legal Center at (202) 406-4443.

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