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Surprised? The NLRB Votes To Approve Ambush Elections & Deny Due Process

Here’s the good news: On Wednesday, the U.S. House of Representatives passed the Workforce Democracy and Fairness Act—a bill to maintain the delicate balance in NLRB-conducted union elections.

Here’s the bad news: The bill, which is actually one of the better bills for employers and their employees to come out of the union-related bills floating around the House,  has no chance of becoming law while union-controlled Democrats have the majority in the U.S. Senate and Barack Obama occupies the White House.

Here’s the really bad news: Wednesday, with the complicity of the lone GOP member at the National Labor Relations Board (who stated he did not want to hurt the image of the [union-run] agency), the NLRB members voted two to one to strip employers of due process and left the door open to give unions the ability to conduct so-called ambush elections on companies and their employees.

In laymen’s terms, here are the main components of what Wednesday’s NLRB vote means to employers and employees:

  • Unions can continue targeting companies and, whenever they wish, file a petition to hold an election.
  • Based on the NLRB’s recent “micro-union” decision, said election petition can consist of nearly any unit (grouping of employees) the union asks for—regardless of whether the employer believes it is an appropriate unit
  • Once the NLRB regional director issues determines the unit and orders the election, there will be no appeal to the NLRB in Washington prior to the election.
  • The NLRB also eliminated a long-standing practice that an election would not take place sooner than 25-days following a regional director’s direction for an election—thereby opening the door for ambush elections.

While the approved proposal is a “scaled down” version of the NLRB’s draft proposal last June (the NLRB did not, for example, rule that employers must furnish employee e-mails and telephone numbers—yet), it is still a huge departure from decades of NLRB precedent.

The chart below, prepared by Nixon Peabody attorney (and former NLRB member) John Raudabaugh illustrates what was and was not approved by Wednesday’s “scaled back” actions:

NLRB Representation Case Procedures
Proposed Rule Forthcoming Final Rule
1. Allow for electronically filed election petitions. NO
2. Expand pre-election Excelsior (eligibility) list requirement to include employees’ telephone numbers, email addresses, work location, shift, and classification. NO
3. Employer must electronically serve all parties with the Excelsior list at the same time it is filed with the NLRB Regional Office. NO
4. Employer must prepare and serve the Excelsior list within two days versus the current seven days. NO
5. Representation case hearing to begin seven days following service of notice of hearing. NO
6. Absent a Consent or Stipulated Election Agreement, Statements of Position would be due no later than the date of the hearing. NO
7. Postpone resolution of voting eligibility and/or inclusion of individual employees in the appropriate unit to post-election if necessary. Limit pre-election appeal to the Board and make post-election review discretionary. YES
8. Hearing Officer authority to entertain evidence only regarding material facts. YES
9. Evidence in a representation case hearing to be limited to a genuine dispute regarding a material fact to an issue in dispute, including unit appropriateness, if raised in the Statement of Position. NO
10. If the only remaining issue at a representation case hearing is the eligibility or inclusion of persons who would constitute less than 20 percent of the unit, the hearing will close. NO
11. Oral argument at representation case hearing permitted but post-hearing briefs discretionary with the Hearing Officer. YES
12. Eliminate post-hearing 25-30 day waiting period prior to the scheduling of an election. YES
13. Notice to Employees of Election to be emailed to employees by Regional Office, posted by employer, and emailed to employees by employer if email communications with employees is customary. NO

As Raudabaugh notes:

Although the final rule appears to be less onerous than the initial proposed rule, the key changes are retained—allowing for elections to be scheduled in a much shorter time period by eliminating the 25-30 day post hearing delay and postponing, or even ignoring, legitimate issues for review regarding voting eligibility and unit scope. Chairman Pearce made clear that those provisions of the proposed rule that are not included in the forthcoming final rule will remain viable for future Board action once the Board returns to at least three members following Member Becker’s departure.

The attorneys at Ogletree Deakins also note:

Even though the Board now proposes a rule that is less onerous to employers than its original rule, which would have reduced the time from filing of the election petition to the holding of the vote to as little as 10-21 days, the new rule, by eliminating pre-election appeals of Regional Director rulings, still substantially shortens the period from filing of the petition to the date of election from the current Board target of 42 days. Elections will be held quicker than before, the precise period being determined by the circumstances in each case.

To reiterate, the NLRB’s scaled down version is bad for both private-sector employers and their union-free employees (which is more than 93% of the private-sector workforce). However, the door remains open for the NLRB to make it even worse.

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“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

Cross-posted on LaborUnionReport.com

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