As expected, the National Labor Relations Board (NLRB) Feb. 5 reissued a proposed rulemaking that will reduce the amount of time between when a union files a representation petition and an election takes place from the current average of 38 days to as few as 10. 

“This proposal is a solution in search of a problem,” said ABC Vice President of Government Affairs Geoff Burr. “Unions already are winning 64 percent of elections and more than 94 percent of those elections occur within timeframes that exceed the NLRB’s own goals related to election timeframes.

Some of the changes include:
  • requiring that any pre-election hearings begin within seven days of a hearing notice being served and that a post-election hearing be held within 14 days of the final tally of votes in the election; 
  • forcing employers to identify and state any legal grounds for questioning the union petition almost immediately, or else they will not be entitled to a hearing;
  • deferring until after the election litigation for eligibility issues that involve less than 20 percent of the bargaining unit; 
  • eliminating pre-election appeals of NLRB regional director rulings and requiring all appeals be included in a single post-election request; 
  • reducing from 7 days to 2 days the amount of time an employer is allotted to provide a list of eligible voters;
  • requiring the voter list to be submitted electronically and include emails and phone numbers for the first time; and 
  • requiring (with some exceptions) all parties and the NLRB to transmit election petitions and election notices electronically. 
“Shortening the election period does nothing to ensure a fairer election and it is clearly not necessary to help the NLRB meet its self-imposed goal for election timeframes,” Burr said. “In addition, it denies employers their rights to free speech and employees the opportunity to make a fully informed decision.

The reissued proposal is substantively similar to the original version from June 2011, which would have significantly changed the union representation election process by drastically shortening election timeframes, and included several other objectionable provisions. In August 2011, ABC and the Coalition for a Democratic Workplace (CDW), which ABC chairs, filed written comments in strong opposition to the rule (70,000 comments were received in total). Representatives from ABC, CDW and other business organizations also testified at a public stakeholder meeting in July 2011; however, the NLRB still issued a truncated version of the proposal as a final rule in December 2011. 

Although the shortened version omitted several contentious provisions from the original proposal, it still remained highly objectionable to the employer community and CDW and other employer groups challenged it in court.. Following several significant employer-side victories on procedural grounds, the board ultimately withdrew the abbreviated final rule in January 2014. At the same time, NLRB Chairman Mark Pearce made it clear he intended to reissue the rule in its original form with a full, five-member board. 

If finalized, the reissued ambush elections proposal would work hand in glove with the Department of Labor’s (DOL) proposed persuader rule, which would deprive employees of their right to obtain balanced and informed input from both sides as they decide whether to be represented by a union. DOL plans to finalize the persuader rule as early as March 2014.

The NLRB is scheduled to officially publish their proposal in the Federal Register on Feb. 6. Stakeholder comments will be due on or before April 7, 2014. A public hearing also will take place during the public comment period at a date and time to be determined. ABC and CDW will continue to review the proposal and respond accordingly.