NLRB re-proposes full version of so-called ‘ambush election’ rules

On 5 February 2014, the National Labor Relations Board (NLRB) voted 3–2 to reissue a notice of proposed rulemaking to amend its representation election procedures. This proposal, identical to the proposal made by the board in June 2011, would speed up the union election process, while limiting employers’ ability to participate in the process. If the rules are finally approved and promulgated, they may take effect as soon as this year. Therefore, employers must prepare now for faster elections with fewer procedural protections. Indeed, it is predicted that this proposal could shorten the time between the filing of a petition with the NLRB and an election from the 2013 median of 38 days to a mere 25 days.

A representation election conducted by the NLRB is the usual method by which a union can become the certified bargaining representative of a group of employees at a workplace. The process traditionally begins with a union filing an election petition with an NLRB regional director and concludes with a secret ballot election. In June 2011, the board proposed broad changes to its representation election procedures. Due to the controversy surrounding this proposed rule, and the fact that more than 65,000 comments were filed in response to it, NLRB chairman Mark G Pearce proposed a less ambitious version of the rule in November 2011. The modified version of the rule was purportedly approved in December 2011; however, following a legal challenge brought by the US Chamber of Commerce, in May 2012, the DC District Court struck down that rule without reaching the merits. In Chamber of Commerce of the US v NLRB, 879 F. Supp. 2d 18 (D.D.C. 2012), the court reasoned that the rule was invalid because it was approved without a quorum, as only two of the three then-current members of the board had cast a vote using the board’s electronic voting procedures. The board appealed the court’s ruling to the DC Circuit, but it withdrew its appeal in December 2013, likely so that it could attempt to quickly push through the broader version of the rules now that it has a full complement of members and a Democratic, pro-union majority…

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