New NLRB Election Statistics Reveal Union Weakness

By George J. Miller

It has been one year since the National Labor Relations Board’s so-called “ambush” or “quickie” election rule went into effect. According to the Board, the rule was “designed to remove unnecessary barriers to the fair and expeditious resolution of representation cases” and “streamline” the process.  In simpler terms, it was intended to speed up the process, something which organized labor and its supporters wanted so that employers would have less time to campaign before the election or, in the jaundiced view of organized labor, less time to intimidate voters.  Organized labor contended that the old process favored employers and was unfair, and that the new rule was needed to “level the playing field.”

Last week, the NLRB released data about the effects of the new rule.  As expected, the process is much faster.  In cases in which unions filed the election petition, the median number of days between the date of the filing of the election petition and the date of the election fell from 38 days in the preceding year (April 2014 to April 2015) to 24 days in the past year (April 2015 to April 2016).  This is a 37% reduction.  In cases in which the unions and employers entered into

U.S. Chamber Files Suit to Block NLRB’s New Election Rule Which Would Speed Up Elections

By Edwin S. Hopson

On January 5, 2015, the Chamber of Commerce of the United States and several other business groups filed suit in federal court in Washington, D.C. against the National Labor Relations Board attacking the NLRB’s recent final rule which significantly changes the NLRB’s representation procedures to speed up the holding of elections and increase the amount of information unions would receive about the employees voting in the elections. The NLRB’s new rule, passed by a vote of 3-2, is set to go into effect April 14, 2015, if not enjoined by the court pending the outcome of the proceedings. The lawsuit alleges the NLRB violated the Administrative Procedures Act, the National Labor Relations Act, and the U.S. Constitution. The plaintiffs also allege that in issuing the final rule the NLRB majority exceeded its jurisdiction and authority and, in so acting, was arbitrary, capricious, and abused its discretion.

House Committee Conducts Hearing on NLRB’s Proposed Changes to Election Rules

By Edwin S. Hopson

On March 5, 2014, the House Committee on Education and the Workforce conducted a hearing entitled, “Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule.” During the hearing, chaired by Representative John Kline (R-MN), some members of the committee claimed that the recently proposed changes to union representation election rules by the National Labor Relations Board would undermine long-standing rights of workers, employers, and unions.

In opening remarks, Kline stated, in part: “For many of my colleagues, this hearing might evoke a sense of déjà vu. 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 choice. In 2011 the House passed with bipartisan support a bill that would have protected the rights of workers, employers, and unions by reining in this radical proposal.”

The rule changes were first proposed in 2011, but were struck down by a federal judge on procedural grounds.  They were then revived last month.  According to Kline, the NLRB’s proposed rule changes would (1) significantly shorten the time between the filing of a union election petition and the actual election, (2) provide employers just 7 days to find legal counsel and prepare for a representation election hearing before the NLRB,  (3) force employers to raise all issues before the hearing or lose the right to raise those issues during the hearing; and (4) delay answers to important legal questions until after employees have voted. Additionally, Kline claimed that the proposed rule changes would jeopardize workers’ privacy by divulging sensitive information, such as email addresses, to union organizers.