Make No Mistake: Ambush Election Regulations Provide Union with Unfair AdvantageMarch 6, 2015 – Articles
On December 15, 2014, the National Labor Relations Board (NLRB or Board) published a Final Rule that would dramatically change the landscape of workplace elections for union representation. The Final Rule overhauls the election process through which labor unions are certified by the NLRB to represent workers. Those in the business community argue that, under the guise of promoting fairness and efficiency, the NLRB seeks to stack the deck against employers in union representation elections.
According to Board members Philip A. Miscimarra and Harry I. Johnson, the Board’s “ambush” or “quickie” election rule makes sweeping changes to an election process that impermissibly limits “the right of all parties to engage in protected speech at precisely the time when their free speech rights are most important”.i Mr. Miscimarra and Mr. Johnson equivocally state that the Final Rule “improperly shortens the time needed for employees to understand relevant issues, compelling them to ‘vote now, understand later’.”ii Further, critics argue that the Final Rule effectively curtails an employer’s ability to engage in a lawful and effective dialogue with its employees regarding whether or not to select union representation.
A major criticism of the Final Rule is that it is an attempt to circumvent Congress, the National Labor Relations Act (NLRA), and its legislative history. On February 5, 2015, a coalition of trade organizations filed suit in the federal district court in Washington, D.C. to block the implementation of the rule. On February 11, 2015, the Senate Health, Education, Labor and Pensions Committee heard from a panel of lawyers, including Dinsmore & Shohl attorney Mark Carter, regarding the ramifications of implementation of the Final Rule. Without action by Congress or the federal courts, the Final Rule will take effect on April 14, 2015.
On March 4, 2015, the Senate passed a resolution, in a 53-46 vote, disapproving the Final Rule. The House of Representatives is set to consider this issue later this month. Even if the House reaches the same conclusion as the Senate, President Obama has stated that he will veto any attempt by Congress to intervene in the Board’s implementation and passage of the Final Rule. Therefore, despite Congress’ vote to quell the Board’s actions, and unless the courts intervene, employers must be aware of the forthcoming union representation election rules.
Current Process and Procedure
Congress has explicitly authorized the Board to conduct workplace elections regarding union representation. Under the long-established, past practices and procedures, the election process begins when an employee, union, or employer files a petition for an election with the Board.iii After a petition is filed, the Board’s regional office initiates a preliminary investigation.iv Upon review of the petition, the regional director will determine whether there is a basis for holding an election, and if so, the regional office will hold a hearing on the petition.v This pre-election hearing usually occurs within 7 to 14 days after the petition is filed and provides all parties an opportunity to present evidence on issues that will affect the election--i.e., whether the employees are covered by the NLRA, whether the collective bargaining unit defined in the petition is an appropriate one, and whether certain individuals or groups of individuals are eligible to vote in the election, and/or are to be included in the putative bargaining unit.vi
Following the hearing, the parties are permitted to submit post-hearing briefs to the regional director, who is ultimately charged with deciding whether to hold an election.vii An election is scheduled at least 25 days after the regional director renders his or her decision, to allow ample time for the Board to consider a party’s request for review of a regional director’s decision.viii After the election is held, the election results are certified only after any post-election hearing and resolution of challenges and objections.ix
A vast majority of elections result in union representation. Of the many examples of union success, in 2011, unions won approximately 71% of about 1,600 elections, 59% of about 1,550 elections in 2012, 60% of about 1,450 elections in 2013, and 63% of about 1,450 elections in 2014.x Given these statistics, one is hard pressed to believe that a change to the rules, which have been in place for nearly eighty years, is even necessary.
The Final Rule
This is not the first effort of the NLRB to drastically modify the process for union representation elections. In 2011, the NLRB proposed changes to the election process intended to significantly reduce the time between petition and election. The proposal triggered an avalanche of comments, both in support and against the implementation of the rule. A final rule was issued in December 2011 and the proposed changes took effect in April 2012. With the rule in effect for only two weeks, the D.C. District Court struck it down on procedural grounds.
In February 2014, the Board issued a second Notice of Proposed Rulemaking (2014 Proposed Rule) which was “in essence, a reissuance of the proposed  rule".xi
The 2014 Proposed Rule, among other things:
- Requires employers to post a workplace notice immediately after a petition is filed.
- Requires a pre-election hearing within eight (8) days of an election petition.
- Requires an employer to submit a Statement of Position within seven (7) days of receiving the petition. Any issue that is omitted from the position statement is deemed ineligible for use by an employer at a representation hearing.
- Severely limits the scope of pre-election hearings to focus solely on whether there is a “question of representation”, meaning:
- Hearing officers may exclude evidence unrelated to the basic question of whether the Board should hold an election; and
- The parties may not be permitted to present evidence regarding whether certain employees or groups of employees are eligible to vote in the election.
- Eliminates an employer’s ability to appeal pre-election decisions to the regional director.
- Eliminates the mandatory 25 day grace period between the regional director’s decision to hold an election and the election itself.
- Eliminates post-election Board review as a matter of right. Rather, post-election review is solely at the discretion of the Board.
- Requires an employer to disclose to unions the personal information of employees, including home addresses, telephone numbers, e-mail addresses, shift schedules, and work stations.
The Practical Implications
The Final Rule raises many criticisms from the business community because it virtually eliminates an employer’s opportunity to communicate its views regarding unionization with employees. The legislative goal of stimulating a full and robust debate amongst employees regarding union representation is stifled, if not eliminated, by a process wherein the employee only hears one side of the debate and can be deprived of any opportunity to engage in a full discussion with all pertinent parties. The Final Rule imposes requirements that are both unreasonable and unduly burdensome for an employer to prepare for the initial hearing and submission of a position statement. While the Union is campaigning, the employer has to retain legal counsel, research and review every possible issue to raise, as well as prepare witnesses—all in the matter of eight days. Last, the mandated disclosure of all employees’ personal information raises serious privacy concerns for employees.
1. Infringement of Free Speech and Access to Information
The NLRA expressly provides that:
The expressing of any views, argument or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or promise of benefit.xii
This provision anticipates that employers, unions, and employees have a right to communicate regarding the positives and negatives resulting from a union organizing campaign. The U.S. Supreme Court has recognized an employer’s free speech right to share its views to its employees, which cannot be infringed upon by a union or the Board.xiii However, this right is only meaningful if the parties have sufficient time to engage in free speech before an election. When elections can occur in as little as two weeks, employers fear the parties will have too little time to engage in the robust debate envisioned by the NLRA.
Critics of the Final Rule caution that the ambush election regulation incentivizes unions to organize by stealth. Typically, the time during the critical pre-election “campaign” period is when employers can provide information to their employees regarding the election and consequences of unionization. With the ambush elections, Unions will likely begin seeking to persuade employees regarding the benefits of union membership without knowledge by employers, until the petition for representational election is filed with the Board. At that point, employers will only have eight days to respond to a union’s dissemination of information. This abbreviated time period does not ensure that employees possess all relevant information necessary to determine whether to vote in favor or against union representation.
2. The Requirements Imposed on Employers for the Initial Hearing and Statement of Position are Unduly Burdensome
As most employers do not retain in-house counsel, a significant hurdle for an employer when faced with a petition following the passage of the Final Rule is securing counsel. As outlined by Elizabeth Milito, Senior Executive Counsel at the National Federal of Independent Business, during the February 11, 2015 Senate HELP hearing, hiring a specialized legal counsel on an emergency basis to prepare for an election will result in increased litigation and expense and may potentially cripple a small business from its regular operations by causing the business owner to “drop all other business duties to meet NLRB deadlines”.xiv Under the Final Rule, the Board will schedule a representational hearing within 8 calendar days of the date the petition is filed. One day prior to this hearing, the employer must present a Statement of Position articulating all of the possible legal arguments and issues it wants the Board to consider regarding the petition. If any argument is not included in this Statement of Position, these arguments are deemed waived, meaning that the employer will not be able to raise them at the hearing.
In addition to preparing and submitting the Statement of Position, the employer is charged with providing thirteen categories of information within seven days after a petition is filed:
- Whether the employer agrees that the Board has jurisdiction.
- Whether the employer is in the “interstate commerce” as defined by the NLRA.
- Whether the employer agrees with the proposed bargaining unit.
- If not, the basis for the employer’s position that the unit is not appropriate.
- Description of the most similar unit that the employer concedes is appropriate.
- Identify any individuals occupying classifications in the petitioned for unit whose eligibility to vote the employer intends to contest and the basis for each such contention.
- Raise any election bar.
- State the employer’s position concerning the type, dates, times, and locations of the election, and the eligibility period.
- Describe all other issues the employer intends to raise at the hearing.
- Name, title, address, telephone number, fax number, and e-mail address of the individual who will serve as the employer’s representative and accept service of all papers for purposes of the representational proceeding.
- Full names, work locations, shifts, and job classifications of all individuals in the proposed unit.
- Full names, work locations, shifts, and job classifications of all individuals in the most similar unit the employer concedes is appropriate.
- The list of names shall be in alphabetical order and in an electronic format approved by the Board’s Executive Director unless the employer certifies that it does not possess the capacity to produce the list in the required form.
Employers contend this onerous information filing, which requires detailed and lengthy research, must be provided prior to the pre-election hearing. Coupled with the fact that the employer must prepare witnesses to testify at this hearing, communicate with its employees regarding the petition to further the robust and full debate, and continue to operate its business, the ambush election regulations are untenable.
3. Voter Eligibility List
The Final Rule also requires employers provide a final voter eligibility list, which includes employees’ telephone number, and e-mail address. This information is not required under the current rules. Further, there is no opt-out mechanism for employees and no penalty assessed against a party for misusing this personal information. Not only is the burden of compiling and producing this information onerous, but it places employers in the awkward situation of divulging sensitive information about its employees.
Fundamentally, it is the business community’s view that under the pretext of reducing delays, the Final Rule permits unions to ambush employers. As Dinsmore’s Mark Carter remarked, “It is far easier to win a campaign when the other candidate is unaware of the election.”xv In essence, the ambush election regulations make it highly unlikely that an employer will be able to obtain legal advice to compile and present mandatory positions within the allotted time frame, prohibit an employer from operating its business without disruption while simultaneously gathering the necessary information, and most importantly, frustrate the employer’s exercise of free speech rights to communicate with its employees prior to the election. The Final Rule will compel employees to make a decision based on half the facts and dilute their privacy rights in the process. Without action by Congress or the federal courts, the Final Rule will take effect on April 14, 2015.
i Representation-Case Procedures, 79 Fed. Reg. 74,308,74,439 (Dec. 15, 2014) (Members Miscimarra & Johnson, dissenting).
ii Id. at 74,430.
iii 29 C.F.R. § 101.17.
iv 29 C.F.R. § 101.18(a).
v 29 U.S.C. § 159(c)(1).
vi 29 C.F.R. §§ 102.64(a) & 102.66(a).
vii 29 C.F.R. § 101.21(b).
viii 29 C.F.R. § 101.21(d).
ix 29 C.F.R. § 102.69(b)-(h).
x NLRB, Election Reports, http://www.nlrb.gov/reports-guidance/reports/election-reports (last visited February 28, 2015).
xi Representation—Case Procedures, 79 Fed. Reg. 7318 (Feb. 6, 2014).
xii 29 U.S.C. § 158(c).
xiii NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).