The National Labor Relations Board (NLRB) has adopted a final rule amending its representation–case procedures. The new procedures will speed up elections, shift the litigation of most disputes until after the election, and severely limit the opportunity for an employer to effectively run a campaign. These amendments are affectionately referred to as the NLRB’s “ambush election” rules. While this phrase is certainly from the employer’s side of view, it is factually descriptive. In addition, despite both houses of Congress voting overwhelmingly to block these amendments from taking effect, thanks to a presidential veto the NLRB ambush election rules took effect Tuesday, April 14, 2015.
NEW NLRB AMBUSH ELECTION RULES
On December 12, 2014, the new NLRB ambush election rules were adopted by a vote of 3-2 (three in favor to two against): Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer voted to adopt the regulation, while Board Members Philip A. Miscimarra and Harry I. Johnson III dissented.
NLRB Chairman Pearce stated these amendments will “ensure that its representation process remains a model of fairness and efficiency for all.” However, the new rules unnecessarily shorten the time needed for employees to understand relevant issues. Ultimately, the employees are compelled to simply vote without understanding both sides of the issues. In voting against the rules, members Miscimarra and Johnson made the following observation:
The Final Rule has become the Mount Everest of regulations: Massive in scale and unforgiving in its effect. Very few people will have the endurance to read the Final Rule in its entirety.
The most important changes in the election process stemming from this new rule are as follows:
1. Just Seven Calendar Days To Submit A Position Statement
The ambush election rules accelerate all deadlines associated with representation elections. However, none is more onerous then the obligation on employers to submit a comprehensive written position statement just seven calendar days after the NLRB serves Notice of a Representation Petition filed by a union. This puts a premium on quick decisions regarding significant issues surrounding the bargaining unit and the upcoming vote.
2. Mandatory Disclosure Requirements: Employee Privacy
The NLRB ambush election rules impose new mandatory disclosure requirements. Employers will have to disclose personal contact information of unit employees, including all personal email addresses and cellular telephone numbers in the employer’s possession. Significantly, the new rule does not give employees the option to opt-out of being included in such disclosure. So much for people’s privacy.
3. Procedural Changes
Election petitions, election notices, and voter lists will now be permitted to be transmitted electronically, and allows NLRB regional offices to deliver notices and documents electronically, rather than by mail. This further accelerates the process. Under the guise of modernization, this step forces employers to accelerate all aspects of the election cycle.
4. Pre-Election Hearing
Under the new rules, many eligibility and inclusion issues will not need to be resolved prior to holding an election. The NLRB would rather vote and then invalidate an incorrect election, rather than proceed in an orderly manner which decides who is eligible to vote and who is not before the votes are cast. This makes no sense. Under the current rules, an employer may insist on a pre-election hearing over certain voter eligibility and inclusion issues raised by both parties, and the pre-election hearing process currently provides employers with crucial additional time between the filing of the petition and the date of the election. Pre-election hearings also provide for fundamental due process, deciding issues of eligibility before the process is tainted. While this system has the potential to include ineligible votes in the election, it also has the potential effect of disenfranchising properly eligible voters. The process is also wasteful, raising the real possibility that government resources will have to be incurred twice, once for the rushed improper vote and again when the original vote is invalidated.
5. No Post-Hearing Briefs
Under existing procedures, an order from the Regional Director directing an election will be put off when an employer requests the opportunity to file a brief with the Regional Director within 7 days of the conclusion of a pre-election hearing. An employer may also request that the deadline be extended by 14 or more days. Under the new NLRB ambush election rules, a party will generally only be provided an opportunity to make its argument in an oral closing statement before the close of the hearing. Written briefs will be allowed, sparingly, at the sole discretion of the Regional Director. The NLRB’s emphasis is not on arriving at a correct decision. Rather, the emphasis is now on making a rash decision so that the election may be expedited. This is akin to civil lawsuits having the trial right after the complaint is filed and only then having the parties conduct discovery to see if the trial was correctly decided.
6. Appeals Postponed
Under the old rules, if the employer or union wanted to appeal the ruling of a Regional Director in a pre-election decision they must make such an appeal to the Board before an election takes place. This allows the NLRB an opportunity to decide key bargaining unit issues which may impact the outcome of an election. The new NLRB ambush election rules postpone the time for requesting review of the Regional Director’s decision until after the election.
7. No Stay of Election
Under the old rules, if either party files a request for review of the Regional Director’s decision, an election may be delayed as long as 30 days to allow the Board to consider such a request. With the elimination of pre-election appeals, the new NLRB ambush election rule includes no provision for an automatic stay of an election pending an appeal to the NLRB.
WHAT TO DO
These new NLRB ambush election rules took effect on April 14, 2015. They sharply tip the balance in elections in favor of unions for elections in workforces that are not prepared in advance. The new rules place a premium on the development of a union-free workplace strategy now, before the petition for election arrives. In the end, the NLRB can expose itself as a mere shill for the Unions by imposing such inequitable rules which, at every turn fail to afford employees with their due process rights. These rules demonstrate that the NLRB and the Union are simply afraid of honest debate where both sides get to present their arguments and then have the fully informed voters decide. However, these rules ultimately do little to take away from the basic common sense arguments that employers can make to their employees.
For more information about how these rules affect your business, please contact your Weintraub Tobin employment attorney.