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NLRB Finalizes Rule That Limits Employer Rights During Union Elections

The two-member Democratic majority of the National Labor Relations Board (NLRB) finalized a rule that is another step toward dramatically shortening the length of time between when a petition is filed and a union election takes place. The rule will be officially published in the Dec. 22 edition of the Federal Register. 

The final rule contains certain parts of a June 2011 proposed rule that ABC strongly opposed because such “ambush” elections would significantly limit an employer’s ability to educate employees about the pros and cons of union representation. The proposal was so contentious that it garnered nearly 66,000 comments from the public when it was issued. In response to the final rule, the ABC-led Coalition for a Democratic Workplace (CDW) filed a lawsuit to block the rule. 

“Instead of putting fairness first, the NLRB bowed to special interests by abandoning longstanding rules governing union-representation elections for this new rigged system where employees have less information and employers have fewer legal rights and a diminished due process.” Said CDW Chairman and ABC Vice President of Federal Affairs Geoffrey Burr. “Unfortunately, taking legal action is the only way to block the rogue agency’s unfair rule.” 

Under the original “ambush” elections proposal, the amount of time between when a petition is filed and a union election takes place would have been reduced from the average of 38 days to as few as 10 days, as the Board would have required pre-election hearings within seven days and provided employers only two days to produce contact information for employees.  Under the modified rules, announced in late November and slated to be published on Dec. 22, the Board disposed of the rigid seven- and two-day requirements, but limited the issues an employer can raise at a hearing as well as the employer's opportunity for appeals.  The impact will still shorten election time frames, with experts estimating elections within 14 to 24 days. 

The NLRB expedited publication of the “ambush” election rule in an attempt to get it finalized before NLRB Member Craig Becker’s term expires on Jan. 1, 2012. The decision garnered opposition from ABC and others and, in November, prompted Member Brian Hayes to send a letter criticizing the move to John Kline (R- Minn.), chairman of the U.S. House of Representatives Education and the Workforce Committee. Hayes was the sole dissenting opinion on the NLRB when the initially proposal was issued. 

“It’s no secret that the board was racing to beat the clock and finalize this rule before controversial recess appointee Craig Becker’s term expired at the end of this year,” Burr said. “What’s most disturbing is that the NLRB continues to move forward with policies and rules that are a political payoff off to big labor, yet harm the construction industry and stifle job growth.” 

ABC is analyzing the contents of the final rule and will offer more information and guidance early next year.


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