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NLRB Reignites Efforts on "Ambush Elections Rule"

Union elections are a disruptive time for any company. While employers do have an opportunity to campaign against union certification prior to the union certification votes, many managers and human resources professionals would argue that the entire process is skewed in favor of unions. This is why it was particularly troubling in February 2014 when the National Labor Relations Board (NLRB) signaled its intent to once again consider the expedited elections procedures it previously attempted to enact in 2011.

On February 5, 2014, the NLRB announced its intent to issue a Notice of Proposed Rulemaking setting forth an amended version of rules it attempted to impose in 2011. Those rules were successfully challenged in federal court on the basis that the NLRB did not have the required quorum to act at the time the rules were issued. The NLRB's subsequent appeal remained in limbo in light of the Supreme Court's upcoming decision in NLRB v. Noel Canning. Ultimately, the NLRB opted to simply withdraw that appeal and reissue the rules with a proper quorum, raising alarms for many in the business community.

While ostensibly designed to modernize the union election process and promote quicker decisions, these rule amendments are troubling to management for several reasons:

  • They would reduce the amount of time employers have to make their cases against unionization, decreasing the average campaign duration to as little as 25 days.
  • They would allow elections to go forward while employers' legal challenges to the scope of the proposed bargaining unit and the eligibility of some of the voters are still pending.
  • They would require employers to provide unions with contact information (including e mail addresses) for eligible voting members of the proposed bargaining unit.

Business groups have generally opposed these new rules, as they did in 2011. However, the Democratic majority on the Board are likely to adopt the new rules in the near future.

It would be wise for employers, at the very first preliminary sign that employees are considering unionization, to consult an experienced labor attorney. Unions already typically win around 50% of the campaigns which take place. The bottom line is that once the new rules are adopted, it will be much more difficult for a company to defeat a union election campaign and the company will have much less time to do so.

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