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Latest News - December 2014

December 12, 2014
NLRB Gives Labor Unions Amazing Christmas Gift But Employers Get Lump of Coal
Sean Redmond

The National Labor Relations Board (NLRB) today announced that it will publish its final ambush election rule on December 15, the day before outgoing Board member Nancy Schiffer’s term expires.

This final rule is the Board’s second attempt to implement sweeping changes to representation election procedures, and it again reflects the NLRB’s pro-labor leanings.  It is intended to eviscerate employers’ legal rights and hamstring their ability to respond to union organizing efforts in any meaningful way.

The Board’s first attempt to implement ambush elections was in 2011, but it was beaten back twice in federal court in a lawsuit initiated by the U.S. Chamber of Commerce Litigation Center.  In February 2014, the NLRB re-proposed the 2011 rule, including some of the more burdensome items that the Board had jettisoned in 2011. 

Put simply, the NLRB’s ambush election rule aims to make it significantly easier for unions to organize a workplace.  To achieve that objective, it will significantly shorten the time period for union certification elections and enact dramatic changes to pre- and post- election procedures.

Some of the significant provisions of the final rule are as follows:

  • Requires a pre-election hearing within eight days of receipt of the election petition.
  • Requires the employer to submit a “Statement of Position” within seven days of receipt of the election petition.  Importantly, if the employer fails to raise a particular issue in this filing, it would be precluded from presenting evidence on the issue or cross-examining a witness on the issue at the representation hearing.  This raises significant due process concerns, particularly for small businesses that may not have legal counsel.
  • Limits the issues and evidence that can be presented at a pre-election hearing, which may leave important questions unresolved prior to a union election.  These could include little things like who is actually eligible to vote.
  • Eliminates the employer’s ability to appeal pre-election decisions of the Regional Director.
  • Eliminates the current 25-day “grace period,” between the end of the hearing and the election.  This will dramatically accelerate the election process, making it very difficult for workers to get balanced information about unions. 
  • Employers are required to give union organizers personal information about their workers including home addresses, telephone numbers, shift schedules, work locations, and, where available, e-mail addresses.

Over the last several years, the NLRB’s activist majority has proved that it has little interest in acting as a neutral arbiter of labor disputes and instead wants to use its power to promote unions.  The ambush election rule represents yet one more example of that agenda, an agenda that has all but destroyed the Board’s credibility.  



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