Tag Archives: ambush election rule

April 3, 2015

Presidential Veto Quashes Congressional Attempt to Overturn NLRB “Quickie” Election Rules

Husband_J By John Husband and Brad Williams 

On March 31, 2015, President Obama vetoed a joint resolution passed by both houses of Congress that sought to overturn the National Labor Relations Board’s (NLRB’s) rules designed to speed up the union election process. Scheduled to go into effect on April 14, 2015, these so-called “quickie” or “ambush” election rules significantly shorten the period of time between a petition for a union election and a vote. 

History of “Quickie” Election Rules 

Williams_BThe “quickie” election rules have a tortured history. First proposed in June 2011, the rules faced immediate and severe criticism that led to a watered-down version of the rules being adopted in December 2011. These watered-down rules went briefly into effect in April 2012, but were quickly invalidated by a federal court just two weeks later. The court ruled that the Board had lacked a statutorily mandated quorum when it voted to adopt the rules. 

Notably, the federal court also stated that nothing prevented a properly constituted quorum of the Board from voting to re-adopt the rules in the future. That is exactly what the Board did in February 2014. It re-proposed its original rules, and subsequently adopted the rules in December 2014. The new rules are slated to become effective on April 14th. 

Legal Challenges Continue 

Despite Congress’s ill-fated  attempt to block the rules under the Congressional Review Act, the rules still face potential hurdles. For instance, the U.S. Chamber of Commerce filed a lawsuit in the District of Columbia in January 2015 seeking to vacate the rules and enjoin their enforcement. Business groups in Texas filed a similar lawsuit in January 2015. These lawsuits allege numerous reasons why the rules should be invalidated, including alleged violations of the National Labor Relations Act and Congressional intent, alleged violations of the First Amendment and due process protections, and arbitrary and capricious rulemaking under the Administrative Procedure Act. However, the lawsuits will take time to wind through the courts, and their chances of success are uncertain. 

Anticipated Effects of Rules 

Barring any unexpected injunction before April 14th, employers should anticipate big changes from the new rules. The rules will shorten the period of time between a petition for a union election and a vote to perhaps fifteen or fewer days (as opposed to the five or more weeks under current practice). The rules are expected to boost organizing activity as unions attempt to increase their membership – and dues-generated revenue – through “ambush” elections. The compressed timeline between a petition and vote will limit employers’ ability to fully explain the pros and cons of union representation before an election, and limit employees’ ability to cast an informed vote. To retain flexibility in dealing directly with their employees, employers should be ready at the first hint of union organizing to educate their employees about the desirability of union representation. Advance preparation, and a properly orchestrated counter-organizational campaign, will be key.

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February 7, 2014

NLRB Again Proposes Rules to Speed Union Elections

By John M. Husband

After dropping its appeal of a District Court ruling that invalidated its “ambush election” rules, the National Labor Relations Board (NLRB or Board) has proposed those rules again.  By a vote of 3-2, the Board reissued proposed amendments to its representation case procedures.  The Board states that the amendments are designed to remove unnecessary delays and inefficiencies in representation case procedures.  The effect, however, is expected to be an increase in union wins as the union election procedures are streamlined and votes occur quicker. 

Board Lacked Quorum When Rules Adopted in 2011 

The NLRB first proposed its rules to speed up the union election process in June of 2011.  At the time, the Board had just three members as two positions were vacant.  Despite an outcry by the business community and receipt of almost 66,000 comments, two of the three Board members voted to adopt the rules.  The final rules were published in December of 2011 and went into effect on April 30, 2012. 

The U.S. Chamber of Commerce and other interested groups sought to stop the implementation of the ambush election rules by suing the NLRB in federal court in the District of Columbia.  Just two weeks after the rules went into effect, the judge in the case invalidated the rules, finding the Board lacked a three-member quorum needed to pass the rules.  Although two of the Board members voted in favor of the rules, the third Board member, the sole Republican, did not participate in the vote.  Finding that the rules were invalid for lack of the statutorily-mandated quorum, the judge did not need to address the challenge to the rules’ constitutionality and the lack of authority of the NLRB to adopt the rules.  In a distinct incident of foreshadowing of this week’s events, the judge specifically stated “nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so."  

The NLRB appealed the District Court’s decision, asking the U.S. Court of Appeals for the District of Columbia Circuit to reverse the lower court’s ruling.  On December 9, 2013, the NLRB withdrew its appeal pursuant to a joint stipulation by the parties.  It did so in anticipation of doing exactly what the District Court judge had suggested, namely proposing the rules again so that a properly constituted quorum of the Board can vote to adopt the rules.  Board Chairman Mark Gaston Pearce and Board members Kent Y. Hirozawa and Nancy Schiffer approved the re-issuance of the proposed rules. 

“Ambush Election” Rules Would Speed Union Election Process 

Published in the February 6, 2014 Federal Register, the proposed changes are virtually identical to those proposed in 2011.  Highlights of the proposed amendments include: 

  • A union may file its representation petition electronically, rather than by hand or regular mail.
  • A hearing must be held within 7 days of the union filing its petition.
  • Employers must provide a comprehensive “statement of position” on the union’s representation petition in advance of the hearing; any issues not included in the statement are waived.
  • Pre-election hearing is to determine only whether a question concerning representation exists; issues related to individual voter eligibility may be deferred to post-election procedures.
  • The parties right to file a post-hearing brief is discretionary as allowed by the hearing officer.
  • Deadline for employer to provide voter eligibility list is shortened from 7 work days to 2 work days from the Direction of Election.
  • Employer must provide email addresses and telephone numbers for employees eligible to vote in addition to the required names and home addresses.
  • Election need not wait for 25 days after the issuance of a Direction of Election.
  • Pre-election appeals to the Board are eliminated, leaving only a discretionary appeal of both pre- and post-election issues after the election occurs. 

Two Board Members Dissented 

Board members Philip A. Miscimarra and Harry I. Johnson III are not in favor of the proposed rules.  Although stating that they share in the majority’s desire to protect and safeguard the rights and obligations of those subject to the National Labor Relations Act, they do not believe it necessary to adopt a “wholesale rewrite” of the Board’s election procedure. 

Interested parties and the public may submit comments on the proposed rules until April 7. Electronic comments may be submitted through http://www.regulations.gov. Comments may also be mailed or hand delivered to: Gary Shinners, Executive Secretary, National Labor Relations Board, 1099 14th Street NW., Washington, DC 20570. The Board intends to hold a hearing on the amendments during the week of April 7.  We will keep you informed of developments on this issue.

 

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