NLRB Signals Interest in Withdrawing ‘Ambush’ Election Rule

Allen Smith, J.D. By Allen Smith, J.D. December 14, 2017
NLRB Signals Interest in Withdrawing ‘Ambush’ Election Rule

​The Obama administration's National Labor Relations Board's (NLRB's) "ambush" election rule, which shortened the length of time for union elections to take place from a median of 38 days to 23 days, may not survive the Trump administration. The board announced in the Federal Register Dec. 14 a request for information on the rule, specifically asking whether the regulation should be withdrawn in full or in part.

"SHRM supports the right of every employee to make an informed and private choice about whether or not to join a union," said Nancy Hammer, senior government affairs policy counsel for the Society for Human Resource Management (SHRM). "We opposed the NLRB's 2014 rule because we felt the expedited time frame unfairly prevented a full and informed discussion before a union election is held. The NLRB is providing an important opportunity to consider whether this rule should be modified or withdrawn."

'Vote Now, Understand Later' Framework

The rule's biggest problem is its accelerated timelines, said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. Companies have two fewer weeks to vet the root causes of the union petitions and to implement a communications plan neutralizing those issues, with the goal of remaining union-free, he said.

The ambush rule also:

  • Decreased the time employers have to furnish unions with contact information of employees who are potentially eligible to vote in union elections. The time was reduced from seven calendar days to two business days from when an election is ordered.
  • Required employers to provide phone numbers employees had made available to companies, even if the information is solely in the possession of front-line supervisors. Under the old rule, an employer only had to provide the union with the addresses of voters. Gathering the phone numbers quickly may be nearly impossible in some circumstances, as vacation schedules of managers may complicate the process, Pryzbylski noted.
  • Postponed the evaluation of issues like supervisor status until after union elections. This is important because supervisors cannot vote in union elections. Also, their actions, including unfair labor practices, may be attributed to the company.

"The ambush rule has created a 'vote now, understand later' framework that is untenable," he said.

Pryzbylski said he thought the rule should be withdrawn in its entirety. But to the extent it is kept and only modified, he thought that:

  • Employers should be guaranteed at least 35 days between the petition for a union election and the election.
  • Businesses should have at least one week to compile employee contact information for submission to the union. Many employers have thousands of employees, and this process can be time-consuming.
  • Supervisors' status should be litigated at pre-election hearings, as was the case under the old rule.
  • Elections should be delayed pending the outcome of any pre-election hearings. Right now, elections can proceed even when the NLRB still is evaluating issues litigated at pre-election hearings.

The request for information has been issued during the last days that Chairman Philip Miscimarra is on the board, noted Michael Lotito, an attorney with Littler in San Francisco and co-chair of its government affairs branch, the Workplace Policy Institute. Miscimarra's term ends Dec. 16, at which point the board will have two Democrats and two Republicans until President Donald Trump appoints and the Senate confirms another nominee.

Rule's Improvements

Board Member Mark Gaston Pearce, a Democrat, opposed the request for information, saying that the rule improved the board's representation-case procedures. According to Pearce, the rule simplified representation-case procedures, codified best practices, increased transparency and uniformity across regions, eliminated duplicative and unnecessary litigation, and modernized communications procedures in light of changing technology.

He said that other beneficial changes included:

  • More equal treatment of National Labor Relations Act rights, more predictable timing of hearings, and more efficient and uniform litigation across NLRB regions.
  • Sparing parties the expense of litigating technical legal questions.
  • Greater ease in identifying employees whose voting is subject to challenge, such as when supervisors unlawfully vote.

Board member Lauren McFerran, a Democrat, also dissented, calling the request for information premature just two and a half years after the rule took effect. The regulation was adopted Dec. 15, 2014, and took effect April 14, 2015. She criticized the request for information as "a vague, unfounded inquiry that is unlikely to solicit useful information" and called it "a transparent effort to manufacture a justification for revising the rule."

Commenters on the request for information have until Feb. 12, 2018, to reply.


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