In 2011, the National Labor Relations Board (“NLRB”) imposed new rules regarding the conduct of representation elections favoring unions, but they were invalidated due to a procedural flaw– not enough Board members participated in the decision making process. In 2014, the Board, with a valid quorum of members, reissued their “ambush election rules,” which are scheduled to take effect on April 14, 2015.
The most devastating effect of the new rules is that they allow for an election to be held only ten to twenty-one days after a union files a petition for an election. Traditionally, elections have been held at least six weeks after a petition is filed allowing employers time to campaign against unionization. A union must establish that at least 30% of a proposed unit wishes to be represented by the union before the Board will conduct an election. Under the new rules, an employer is “ambushed” by a petition because the union has been quietly organizing employees for months and the employer may have as little as ten days to share its point of view and other truthful information about unionization with employees before election.
Another negative aspect of the ambush election rules is that, in most cases, the Board will not determine which employees are actually in the proposed bargaining unit until after the election is held. This means employees must vote without knowing who else the union will represent, if successful. Hence, employees will be deprived of the opportunity to make an informed decision about whether to choose a collective bargaining representative.
In addition to depriving employees of pertinent information, both by minimizing the employer’s opportunity to thoroughly educate them about unionization, and by delaying decisions about the bargaining unit’s composition, the ambush election rules place an undue burden on employers. The rare employer that is granted a pre-election hearing will need to be ready in only eight days. During that time period, the employer is required to submit a position statement with legal argument regarding the issue(s) to be presented at the hearing and two employee lists—one with those in the union’s proposed bargaining unit and one with those in the employer’s proposed bargaining unit. Naturally, these rigid time requirements will divert an employer’s attention away from educating employees during the short period they have to do so.
Traditionally the list of proposed bargaining unit members only needed to include employee names and addresses. Under the new rules, employers must add job classifications, work locations and “modern contact information,” including personal email addresses and phone numbers. Not only does this create additional work for employers, but, since the list must be provided to the union, it also raises privacy concerns employees will object to.
According to the Board, the purpose of the ambush election rules is to “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation.” However, as former NLRB Member Hayes astutely stated the “problem” supporters of the ambush election rules wish to remedy is “not that the representation election process generally takes too long,” but rather “that unions are not winning more elections.” In his eyes, the NLRB’s true goal is to limit employers’ opportunity to express their views in an effort to increase unionization. Based on the number of lawsuits the ambush election rules have given rise to, his perspective is far from unique.
At least seven groups, including the Associated Builders and Contractors of Texas, have filed lawsuits challenging the NLRB’s ambush election rules. In its Complaint, the Associated Builders and Contractors asserts that the ambush election rules deprive employers of their First Amendment rights, by curtaining their ability to communicate with employees, and deny employees “the fullest freedom in exercising the rights” under the National Labor Relations Act.
Given the above, employers that wish to remain union free should develop a plan for responding to organizing campaigns before the ambush election rules take effect. If you wish for assistance in doing so or have any questions regarding election issues in general, please do not hesitate to contact Alan Ross, Nick Nykulak or Colleen Koehler at 216-447-1551.