NLRB Officially Issues “Ambush Election” Rule Proposal

Feb 06, 2014

Quietly yesterday morning, with little fanfare, the National Labor Relations Board wedged its foot in the front door of America’s non-union employers, all but assuring organized labor will have an easier time of getting in. While the worst is yet to come, the timeframe for the “worst” to finally arrive shrinks with each passing moment.

According to the NLRB’s Official Notice of Proposed Rulemaking published in the Federal Register, the Board’s regulations regarding the administration of union elections will be fundamentally altered upon the new rules’ final implementation. While one could spend hours discussing the impact and import of each discrete proposed amendment, the most significant components of the new rules include:

  1. Requiring employers to provide the NLRB and the union the telephone number and email address of each employee that may be eligible to vote in a union election;
  2. Limiting an employer’s ability to challenge the appropriateness of the unit of employees the union seeks to represent in advance of an election;
  3. Limiting an employer’s ability to challenge the voting eligibility of either individual employees or classes of employees the union seeks to represent in advance of an election;
  4. Significantly shortening filing deadlines to limit an employer’s ability to adequately prepare for an administrative hearing as technical and legally complex as a pre-election hearing;
  5. Limiting the right of an employer to challenge the NLRB Regional Director’s decision regarding voting eligibility and the scope of the appropriate voting unit before an election is held;
  6. Limiting the ability of an employer to obtain a review of any post-election challenges to voter eligibility or objections to union conduct during the election;
  7. Eliminating the requirement that an election occur within 25-30 days after the direction of the election, thereby permitting elections to be held as early as 10 days after the NLRB Regional Director issues his decision.
  8. Allowing the NLRB to directly contact an employer’s employees using the employer’s email system; and
  9. Requiring employers to post new notices regarding NLRB procedures.

Public comments regarding the proposed regulations will be open through April 7, 2014 and replies to comments submitted during the initial comment period must be received by April 14, 2014. Savvy employers will not spend their time tilting at the NLRB’s windmill. They will, instead, prepare for life after the all but certain Summer 2014 implementation of these regulations by having their human resources professionals work collaboratively with counsel to perform the necessary due diligence and analysis to be in a position to mount a vigorous challenge to a union organizing petition within the short deadlines the new rules impose. Do you have questions? Do you need some recommendations as to what work needs to be done to prepare? The experienced labor lawyers at the Lowenbaum Partnership stand ready to help your company navigate the treacherous waters churned by the Board’s efforts to assist “Big Labor.”

If you have any questions about theNLRB Officially Issues “Ambush Election” Rule Proposal regulations or any other labor relations matter, please do not hesitate to contact Corey Franklin at CLF@Lowenbaumlaw.com, R. Michael Lowenbaum at RML@Lowenbaumlaw.com; D. Michael Linihan at DML@Lowenbaumlaw.com;or Robert Seigel at RSS@Lowenbaumlaw.com.


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