NLRB Approves Pro-Union “Ambush Election” Final Rule

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Once again the Obama National Labor Relations Board (NLRB) has taken up the “ambush” rule, allowing union bosses free rein to do whatever it takes to  win a representation election.  Karl Hororwitz has the story in his blog at National Legal and Policy Center.

NLRB Members

A fair election campaign operates on the principle of a “level playing field” – while neither side is guaranteed victory, each should have an equal opportunity to state its case. The National Labor Relations Board has an unusual interpretation. On February 5, the NLRB reissued a rule that would curtail the ability of nonunion employers and employees to oppose union organizing drives. This ‘quickie’ or ‘ambush’ election rule, is a near rewrite of its 2011 rule change that briefly made it onto the books before being struck down on procedural grounds by a federal court in May 2012. Here, as before, the allowable time frame for opponents of a union drive to express their views would be reduced from 42 days to as few as 10 days. Union officials say the regulation promotes fairness. Yet the effect, and one suspects the intent, is an erosion of union opponent free speech.

. . . The regulation would:

Reduce from 42 days to a range of 10 to 21 days the period of a standard union election process. In practice, the median duration has been 38 days.

Require employers to file a formal Statement of Position within seven days or forfeit the right to pursue any issues.

Force targeted nonunion employers to turn over employee personal information such as home addresses, e-mail addresses, home phone numbers and cell phone numbers to the union to facilitate contact.

Eliminate the required 25-day waiting period prior to the holding of an election.

Allow workers at a given site to cast ballots even if their eligibility is contested, deferring any legal action until after the election.

Eliminate an employer’s automatic right to a post-election NLRB review of contested issues.

In effect, where a union would have months and even years to build support at a given work site before approaching the NLRB to supervise an election, an employer would have at most a few weeks to offer any responses. This rule change especially would hurt small businesses, which typically do not employ a labor issues counsel. The result would not be a level playing field. Election campaigns would be rigged in favor of unions.

The NLRB justifies its proposal as long overdue. Chairman Pearce argues it is a way to “modernize the representation case process and fulfill the promise of the National Labor Relations Act.” Organized labor, needless to say, is fully supportive. “We applaud the National Labor Relations Board for proposing these commonsense rules to reduce delay in the NLRB election process,” said AFL-CIO President Richard Trumka. “Similar rules were adopted by the NLRB more than two years ago after an exhaustive public rulemaking process. The rules were needed then, and they are still needed now.” But exactly how are they needed? The National Labor Relations Board long has handled elections in a brisk and efficient manner. More than 95 percent of all elections are held in less than two months after being approved. The median campaign time is 38 days. And unions during the last decade have won about two-thirds of all representation elections.

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