Labor Board walks back union election rule’s ‘ambush’ aspects

A lengthy, late-2019 notice in the Federal Register outlines modifications to the National Labor Relations Board’s Representation–Case Procedures rule, which saw 25 amendments in 2014-2105 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.”

In their analysis, “NLRB Final Election Rule Signals More Balanced and Efficient Elections Ahead,” Jason Stanevich and Marie Duarte, of the New Haven, Conn., and Long Island, N.Y., offices of leading labor relations counsel Littler, conclude: “While the refined timeline for representation elections will undoubtedly help employers communicate with their employees during the course of representation elections, we do not expect union organizing to slow down. In 2018, unions won 69 percent of the elections they filed with the Board. Thus, employers should continue to take active steps to better understand workplace issues, improve employee morale, and reduce the threat of unionization.”

The final rule responds to critics of the 2014 Representation–Case amendments, few more fervent than the Coalition for a Democratic Workplace, Washington, D.C. In a statement on comments responding to a 2017 NLRB solicitation for feedback on the 2014 amendments, CDW noted that the “rule was designed to ambush both workers and employers in an effort to tip the scales in favor of unions at the expense of open debate. The rule degrades the election process by blocking employers’ due process rights and workers’ ability to hear from both sides during an organizing drive.”