NLRB Clears the Decks for New Ambush Election Rule

By Glenn Spencer   12/9/2013

On December 6, the National Labor Relations Board (NLRB) dropped its appeal of a court decision that overturned its 2011 ambush election rule.  In 2012, a judge had determined that the NLRB improperly promulgated that rule because only two members had actually voted on it, rather than the three required by law.  The Board’s request that the DC Circuit dismiss its appeal, once approved, will put an end to this litigation — and to this version of the rule.

Celebration, though, would be premature.  In all likelihood the NLRB only dropped its appeal so it could clear the decks for a new ambush election rule.  In fact, such a rule is the only item the NLRB included in the Office of Management and Budget’s recently released unified agenda of federal regulations — the list of all federal regulation currently under consideration. 

The whole theory behind ambush elections is based on organized labor’s belief that workers are eager to join unions, but aren’t because certification elections take too long.  It’s hard to take this claim too seriously since as the NLRB’s Acting General Counsel noted in a 2011 report, the median time to conclude an election was only 38 days, an achievement he referred to as “excellent.”  The reality is that unions simply want to rush the election process so employers have no opportunity to respond.  The current election window gives both sides time to make their case to employees, who can then make an informed decision.  If unions were the only entity that workers heard under an expedited process, their chances of winning would go up dramatically.  To stack the deck further, the Board wants to rig the process, so that employers have little ability to contest campaign irregularities in the NLRB’s judicial proceedings. 

So how would the Board achieve these outcomes?  A quick look at the NLRB’s previously proposed ambush election rule is revealing.

♦   The proposed rule limited the subject matter of pre-election hearings only to whether there was a question concerning representation, that is, if there was enough interest among workers to hold an election.  This would have precluded raising other contested matters — for example, which employees were even allowed to vote.  The Board’s proposal stated that if there was a dispute over less than 20 percent of potential voters, it would be dealt with after the election.  So in other words, the Board wanted to have an election first, and only then figure out who was eligible to vote.  

♦   The proposed rule would have eliminated an employer’s right to file pre-election briefs challenging election irregularities.  Instead, NLRB staff themselves would have decided whether or not to allow briefs.

♦   The proposed rule would have eliminated the ability to challenge any pre-election rulings by an NLRB regional director until after an election has taken place.  So if a regional director ignored union misconduct prior to the vote, there would be no appeal of this until after a tainted election had already taken place.

♦   The proposed rule would have eliminated language in the NLRB’s procedural manual that required at least 25 days to elapse between the direction of an election and the date of the election. 

♦   The proposed rule would have made Board review of post-election disputes discretionary.  Thus, if the Board didn’t feel like examining campaign misconduct that might have led to a union victory, it simply wouldn’t have to.  Of course, it would be free to take up any allegation of employer misconduct should a union lose an election.

♦   The proposed rule would have required parties to submit detailed statements of position during a very short window prior to an election, and made it nearly impossible for an employer to subsequently raise issues that were not included in that statement. 

♦   Finally, employers would have been required to turn over to unions additional personal information about their employees, such as home phone numbers and e-mail addresses (home addressed must already be provided).

Looking at these provisions, it is apparent that the Board’s intent is to hold rapid elections at all costs and ask questions later.  Such a scenario would allow unions to quickly secure representation, and then negotiate over any violations that may have occurred during the campaign after the fact. 

A future ambush election rule could include all, or just some, of the above-mentioned provisions — although given their newly-confirmed membership the NLRB is likely to include all of them and more.  As of now, there is no date specified for a new rule.  But as the Board’s decision to drop their appeal shows, the wheels are clearly in motion.