NLRB’s New Quickie Elections May Allow for Union Ambush Tactics

15 December 2014 Labor & Employment Law Perspectives Blog

The National Labor Relations Board certainly did not wait long to take the next step in changing the landscape of union organizing to promote the success of labor interests in representation campaigns. Only one day after its blockbuster decision, opening up employer email systems to largely unimpeded use for union organizing purposes, the Board changed its election procedures in a step likely to confer substantial advantages to unions in organizing campaigns. As it signaled it intended to do earlier this year, on December 12, 2014, the Board officially rewrote its election regulations in a 3 – 2 vote — based strictly on party lines to purportedly “streamline” the election process — by allowing for much faster union elections after a representation petition is filed. While the democratically-appointed Board majority has claimed these changes will “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation” — although the Board’s own statistics show it has repeatedly met its own published timetables for holding elections — many in the employer community have viewed the changes as effectively green-lighting “ambush elections,” allowing a union to file for and win an election before an employer has the realistic opportunity to oppose unionization and prepare effective (and legally compliant) responses to propaganda circulated during an organizing campaign.

In addition to speeding up the election timetable, the amended Board elections rules now also controversially require employers to turn over to a union a voting list that includes not only names and addresses of eligible voters, but also personal telephone numbers and emails addresses of voting employees. The Board dismissed the privacy concerns relating to the forced disclosure of such information — without allowing for any employee to opt out of having his or her information disclosed to a union — as purportedly outweighed by the need to adopt the election process to modern communications.

As noted, these amendments come with substantial opposition and criticism from employers, and after the NLRB first failed to implement these changes years earlier. The Obama-era NLRB first attempted to “streamline” its election procedures in December 2011, when a different democratically-appointed Board majority tried to usher through these same election changes, only to have the effort fall to a successful legal challenge focusing on the Board’s failure to follow proper procedures. Three years later, in the face of the two current Republican-appointed members of the Board’s dissent, asserting that an employer’s ability to communicate with its employees only has meaning if the employer has time to actually communicate in a careful and proper manner with its employees, the Board majority pushed through the changes over alternate proposals that the dissenting members said would win unanimous Board support.

Several employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, issued statements in response to the changes, criticizing the new election rules and procedures and indicating they were considering potential legal challenges. As a consequence, it may be that there will be more to come on this front before the new election rules and procedures become effective on April 14, 2015. In the interim, we can surely expect more tension between employer interests and the Board, as well as concerns regarding the increasing politicization of an agency which, according to Tennessee Republican Senator Lamar Alexander, “was established to be an impartial umpire in labor disputes, but has grown into an advocate of whichever party has the White House.”

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