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NLRB prepares to take the ‘ambush’ out of union election rule

Sources: National Labor Relations Board; CP staff

A detailed Federal Register notice outlines modifications to the National Labor Relations Board’s Representation–Case Procedures rule, which saw 25 amendments in 2014-2015 as a part of a significant policy shift under President Barack Obama. Changes effective April 2020 sunset certain provisions enabling what opponents dubbed “ambush elections” by narrowing the window between a union petition for bargaining unit representation and rank & file voting from a 38- to 28-day average.

The final Representation–Case rule should clarify pre-election procedures to foster opportunity for litigation and resolution of unit scope plus voter eligibility issues, while affording additional time to comply with requirements instituted in 2014. “These are common sense changes to ensure expeditious elections that are fair and efficient,” affirms Board Chairman John Ring. “New procedures will allow workers to be informed of their rights and simplify the representation process to the benefit of all parties.”

A pre-election hearing on union representation, unit scope and voter eligibility will generally be scheduled 14 business days from formal notice versus the prior rule’s eight calendar day target. The new rule will also extend from two business days to five the windows for employers to post and distribute a Notice of Petition for Election after formal hearing notice, and furnish a voter list after a regional officer’s direction of election.

“The final rule represents a return to procedures prior to the 2014 amendments, and will promote fair and accurate voting as well as transparency by better defining the unit in question prior to the election,” the agency states. “By encouraging regional directors to resolve issues such as supervisory status prior to directing an election, the final rule will give better guidance to employees and parties, and help avoid conduct that may give rise to objections or unfair labor practices. At the same time, expressly permitting the parties to agree to defer litigation on such issues continues to honor the National Labor Relations Act’s fundamental interest in encouraging agreement between parties where possible, which promotes promptness and efficiency. The choice is theirs, not mandated by the Board.”

The NLRB final rule responds to critics of the 2014 Representation–Case amendments, few more fervent than the Coalition for a Democratic Workplace, whose members include the National Ready Mixed Concrete Association, National Precast Concrete Association, Interlocking Concrete Pavement Institute, American Concrete Pressure Pipe Association and Portland Cement Association, along with Associated Builders & Contractors and National Association of Manufacturers.

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