NLRB Revives ‘Ambush Election’ Rule to Thwart Opposition to Union Campaigns

nlrb-logoA 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, would be an erosion of freedom of speech for opponents.

The reintroduction of the ambush rule didn’t come as any surprise. The National Labor Relations Board, now back up to its full five members following a tumultuous half-decade of operating short-handed, has a 3-2 pro-union majority. As has been customary for decades, the board consists of three members of the ruling political party and two of the opposition party. Thus, in periods of Democratic Party rule, such as the current Obama administration, the NLRB at full strength has three Democrats and two Republicans. And Democrats on the board favor unions; typically, they previously have served as a union lawyer or as a top congressional aide. The Senate last July 30 approved all five current members up for nomination following a threat by Majority Leader Harry Reid (D-Nev.) to reduce the bar needed to break a filibuster.

A full pro-union majority will come in handy for organized labor. On June 22, 2011 the NLRB, approved the quickie election rule by 2 to 0. The action soon enough met with opposition by Republicans in the House of Representatives. Rep. John Kline, R-Minn., chairman of the House Committee on Education and the Workforce, sponsored a broad labor reform bill, the Workforce Democracy and Fairness Act, one of whose provisions was that a union election could not be held with less than 35 days’ advance notice. This provision effectively would overturn the ambush rule. The full House passed the bill late that November by a 235-188 margin, but the Senate took no action. The NLRB the following month approved the final rule, which took effect on April 30, 2012.

Outside the halls of Congress, opponents of the new NLRB rule already had taken their case to District of Columbia federal court. Only hours after the board’s December approval, the U.S. Chamber of Commerce, along with an ad hoc nonprofit known as the Coalition for a Democratic Workplace, filed a complaint arguing that the two NLRB members who promulgated the rule, Chairman Mark Gaston Pearce and Craig Becker (a recess appointment who had left the board at the end of 2011, unable to secure the necessary support from the Senate for a full-term appointment), did so without a necessary three-member quorum. The plaintiffs maintained that the pair willfully excluded the lone Republican on the board, Brian Hayes, an opponent of the regulation. The challenge proved successful. On May 14, 2012, the rule having been in effect for only two weeks, U.S. District Judge James Boasberg struck it down. He wrote: “The NLRB’s suggestion that the quorum requirement was satisfied on the ground that three members held office when the rule was approved contradicts the clear pronouncements of the Supreme Court as well as common practice (and common sense). Something more than membership is necessary.” Elsewhere he added, “Representative elections will have to continue under the old procedures.” Boasberg, however, left open the substantive issues.

The National Labor Relations Board appealed the decision, but given that it was back to full strength by the end of last summer, it eventually withdrew the appeal  last December in order to clear the decks for a reintroduction. On February 5 the reissue became a reality. The 3-to-2 pro-union majority put forth, for all intents and purposes, a carbon copy of the 2011 rule. 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, predictably, 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 why 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.

Opponents of the NLRB move are making these and other points. And they are speaking out. On March 5, a month after the reintroduction of the rule, the House Committee on Education and the Workforce held a hearing entitled, “Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule.” Chairman Kline reiterated his earlier opposition. “For many of my colleagues, this hearing might evoke a sense of déjà vu,” remarked the Minnesota Republican. “Not too long ago we debated a nearly identical ambush election rule proposed by the National Labor Relations Board that would stifle employers’ free speech and cripple workers’ free choices.” Doreen Davis, a labor and employment attorney with the New York litigation firm of Jones Day, also expressed strong criticism at the hearing: “The NLRB’s proposed rule changes are in excess of the board’s rulemaking authority, are substantively unnecessary, and are contrary to the [National Labor Relations Act]. Moreover, the proposed rules evidence poor public policy and are likely to exacerbate, rather than alleviate, labor tension between employers and employees.”

A little over a week later, on March 13, following a closed-door meeting with NLRB Chairman Pearce, Rep. Phil Roe, R-Tenn., chairman of the Education and the Workforce Committee’s Health, Education, Labor and Pensions Subcommittee, stated: “We wanted to know what was wrong with the existing rules. People understand them; they’re clear; and they work in the real world.” Roe also spoke from his own experiences as a businessman. “There’s no way on earth (that) I as an employer, could get informed or hire a skilled labor attorney within 10 days,” he said. “I could end up making mistakes, not out of malice, but out of ignorance of the law. That is not a lot of time to digest complicated legal information.”

The 60-day comment period over the proposed rule ends on April 7, to be followed by a seven-day reply period. The NLRB already has received tens of thousands of comments. Due to the volume, Rep. Roe during his meeting with Chairman Pearce requested an extension of the comment period by a month. Pearce has yet to respond. Opposition to fast-track elections, one might add, never has been a straight party-line issue. More than 50 years ago, while as a Democratic senator from Massachusetts, future President John F. Kennedy stated: “There should be at least a 30-day interval between the request for an election and the holding of an election.” Kennedy termed such an interval “an additional safeguard against rushing employees into an election where they are unfamiliar with the issues.” The NLRB would do well to heed these words and either withdraw or soften its new rule. The alternative almost certainly will be another court battle – and this time over substantive issues.


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