NLRB effects rule expediting union representation elections

Source: Associate Builders and Contractors, Arlington, Va.

A controversial final rule issued by the National Labor Relations Board (NLRB) in December 2011 that overhauls procedures for union representation elections became effective on April 30. Under the rule, commonly known as the “ambush” elections rule, the amount of time between when a union files a representation petition and an election takes place is reduced from the current average of around 40 days to as few as 17–20 days.

The NLRB achieved this drastic reduction in time primarily by combining pre- and post-election appeals, truncating pre- and post-hearing procedures, and limiting the types of issues an employer can raise at a pre-election hearing. (Determining which employees are considered supervisors and which constitute a potential bargaining unit are no longer permitted before the election takes place.)

Although the NLRB’s final rule requires no immediate action by employers unless they are involved in a union representation election, the shortened time period for union elections will place a premium on rapid response by employers to union organizing activity. Employers are encouraged to speak with their labor counsel now about implementing a rapid-response plan for management.

In an effort to block the rule, the ABC-led Coalition for a Democratic Workplace in February filed a legal challenge that is pending in U.S. District Court for the District of Columbia. The coalition pointed out that the rule denies employers their rights to due process and pre-election communication with their employees, which in turn denies employees their right to balanced information. In addition, it encourages the kind of back-door union organizing sought through the deceptively named Employee Free Choice Act (EFCA). A ruling in the legal challenge is expected any day and ABC will inform members of any developments as they occur.

In addition to the lawsuit, ABC supported a resolution in the U.S. Senate that would have blocked the rule. The effort failed April 24 in a 54-45 vote. This final rule is only a small part of a larger proposal issued in June 2011 that called for even quicker union representation elections and more infringement on employer and employee rights. NLRB’s current chairman has indicated that he plans to eventually implement the entire proposal.

Furthermore, in an April 26 memo, NLRB Acting General Counsel Lafe Solomon gave a more detailed explanation on how regional offices will implement the “ambush” elections procedures. The memo covers the entire representation case process from beginning to end and incorporates the new rules in addition to the procedures that remain unchanged. The NLRB also has issued a set of frequently asked questions regarding the rule.