Business owners, including those in construction, should be aware of a proposal recently reissued by the National Labor Relations Board (NLRB) designed to reduce the amount of time between when a union files a representation petition and an election takes place from the current average of 38 days to as few as 10. Taken together with an impending rule from the Department of Labor (DOL), this “ambush” elections rule ultimately will cause an imbalance in workplace labor relations that will give union organizers an unfair advantage and infringe on employers’ and employees’ rights.
The reissued proposal is substantively similar to a rule issued in June 2011 that was opposed in August 2011 by Associated Builders and Contractors (ABC) and the Coalition for a Democratic Workplace (CDW). The groups filed written comments in strong opposition to the rule. In addition, representatives from ABC, CDW and other business organizations also testified at a public stakeholder meeting in July 2011. Despite the heavy opposition, the NLRB still issued a truncated version of the proposal as a final rule in December 2011.
Although the shortened version omitted several contentious provisions from the original proposal, it still remained highly objectionable to the employer community, prompting CDW and other employer groups to challenge it in court. Following several significant employer-side victories on procedural grounds, the board ultimately withdrew the abbreviated final rule in January of this year. At the same time, NLRB Chairman Mark Pearce made it clear he intended to reissue the rule in its original form with a full, five-member board.
The NLRB’s proposal is a solution in search of a problem. The NLRB wants to hold union elections in an expedited time frame; however, unions already are winning 64 percent of elections that take place. In addition, more than 94 percent of those elections occur within time frames that exceed the NLRB’s own goals.
Shortening the election period does nothing to ensure a fairer election — indeed it actually accomplishes the opposite. If finalized, the reissued ambush elections proposal would work hand in glove with the DOL’s proposed persuader rule, which would deprive employers of qualified labor counsel and prevent employees from obtaining balanced and informed input from both sides as they decide whether to be represented by a union. Specifically, it would greatly expand the circumstances in which third-party advice, which employers use to educate their employees about collective bargaining, would have to be reported by both the employer and the third party. Third parties include attorneys and association staff.
Some of the changes under the ambush election proposal include:
• Requiring any pre-election hearings begin within seven days of a hearing notice being served and a post-election hearing be held within 14 days of the final tally of votes in the election.
• Forcing employers to identify and state any legal grounds for questioning the union petition almost immediately, or not be entitled to a hearing.
• Deferring until after the election litigation for eligibility issues that involve less than 20 percent of the bargaining unit.
• Eliminating pre-election appeals of NLRB regional director rulings and requiring all appeals be included in a single post-election request.
• Reducing from seven days to two days the amount of time an employer is allotted to provide a list of eligible voters.
• Requiring the voter list to be submitted electronically and include emails and phone numbers for the first time.
• Requiring (with some exceptions) all parties and the NLRB to transmit election petitions and election notices electronically.
Although the rule isn’t quite final yet — a comment period is open until April 7 and a public hearing also will take place during the public comment period — throughout the process, ABC and CDW will continue to review the proposal and respond, and concerned employers and employees should do the same.
Dan Brodbeck is the founder, president and CEO of Compass Partners LLC, Brentwood, Tenn.
For more information on ABC, visit www.abc.org or call (202) 595-1505.
