“Ambush Election Rules” or Big Win for Labor Unions? Either Way, Changes May Be in Store for the Union Organizing Process

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With a Notice of Proposed Rulemaking (“NPRM”) issued earlier this month, the National Labor Relations Board’s controversial proposed regulations on union elections are once again making headlines. A near reincarnation of a 2011 proposal that was ultimately struck down, the proposed regulations look to “streamline” the union election process. The changes, however, make some substantive revisions that may negatively impact employers.

What do the regulations propose?  

  • Allowing electronic filing of election petitions and other documents;
  • Ensuring employees, employers, and unions receive and exchange information in a timely fashion;
  • Streamlining election procedures to promote agreement and eliminate unnecessary litigation;
  • Including telephone numbers and email addresses in voter lists; and
  • Consolidating all election-related appeals to the NLRB into a single post-election appeal process.

See NPRM, 79 Fed. Reg. 7317 (Feb. 6, 2014). These proposed changes are essentially identical to the changes proposed by the NLRB back in June 2011. Those proposed regulations were eventually struck down by the U.S. District Court for the District of Columbia, not on the merits, but rather—bringing up a similar issue to the Noel Canning case currently before the Supreme Court—on the basis that the NLRB’s statutorily required quorum was not met when the rule was adopted. See Chamber of Commerce of the United States of Am. & Coal. for a Democratic Workplace v. Nat’l Labor Relations Bd., Case No. 1:11-cv-02262- JEB (D.D.C. May 14, 2012).

What are the implications?

Moving employer challenges to the size or definition of the group of employees who should participate in an election and other eligibility issues until after an election has been held may impact the employer’s ability to challenge gerrymandering by a union seeking to disenfranchise eligible employees or include ineligible employees in a vote on representation. Furthermore, shortening the time frame between the filing of a representation petition with the NLRB and the election itself will give employers far less time to communicate essential information to employees. This is compounded by the fact that employers often do not learn of organization efforts until an organizing campaign is already substantially underway, thus making the shortened time frame even more devastating to employers. Employers may find it difficult to effectively communicate with employees in the truncated time frame, resulting in employees making decisions about the union representation without the benefit of hearing all of the facts.

What’s next?

At this point, these are only proposed regulations, and NLRB Chairman Mark Gaston Pearce notes that “No final decisions have been made.” If interested, employers have until April 7, 2014 to comment on the proposed changes. Additionally, employers may want to take this opportunity to begin preparing a plan of action should the rules take effect.