NLRB Resurrects its Ambush Election Rules

February 7, 2014 By The Labor and Employment Practice Group
Legal Update

On February 6, the National Labor Relations Board (NLRB) published a notice of proposed rulemaking to change some of the procedures for conducting elections among employees to determine whether they want to be represented by a union.  These new rules initially were adopted by the NLRB in December 2011.  A federal court invalidated them shortly thereafter because they were enacted improperly.  With the addition of new members to the NLRB last fall, it was anticipated the agency – now at full strength – would revisit the rulemaking process. 

The newly proposed rules virtually are identical to those adopted in 2011.  They would streamline the representation procedure to accelerate the time period between the filing of a petition for an election to the actual election and an ultimate final decision about the election’s outcome.  Definite time lines are not part of the proposed rules.  The elimination of certain procedural hurdles, however, would mean elections could be held in a few weeks thereby making it extremely difficult, if not impossible, for employers to communicate effectively with their employees about the issues raised in an election campaign. 

The proposed rules are open for public comment until April 7.  The NLRB received over 65,000 comments both for and against the changes in 2011.  It will consider those comments as well as any new comments before making a final decision. 

It may be late this year before the NLRB takes any final action on the proposed rules.  Once enacted, the rules will be challenged by employer-sponsored groups on substantive due process and other grounds.  As a result, the election ground rules may not be changed for some time, if at all.  Nevertheless, this news is a strong indication of the direction of the current NLRB and a need for employers to strengthen their efforts to remain union free. 

Unions already win 64% of NLRB-conducted elections.  As always, the key is to identify and positively address workplace issues before a union knocks on your door.  Taking those proactive steps will prevent a union from gaining the support of a sufficient number of employees to petition the NLRB to conduct an election.

If you have questions about these proposed rules or questions about preserving a union-free environment, please contact Raymond Neusch, John Lovett, or any attorney in Frost Brown Todd’s Labor and Employment Practice Group.

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