Hunton Employment & Labor Perspectives

Yesterday, the National Labor Relations Board published a final rule modifying its representation case procedures.

The final rule takes effect April 17, 2020, and scales back—but does not completely undo—the changes to election regulations instituted by the Obama-era’s Board that have caused employers heartburn since 2015. Those changes effectively sped up the election process and cut down on employers’ ability to litigate many important legal issues prior to voting, putting employers at a disadvantage.

Published in Law360

The National Labor Relations Board has an 80-plus year history of administering federal labor law and regulating labor-management relations in the United States. Formed in 1935 by the passage of the original Wagner Act, the board’s primary obligations are to oversee the formation of collective bargaining units, to investigate and prosecute unfair labor practices, and to establish legal precedent through regulations and binding case precedents. In carrying out its responsibilities, the board is generally expected to act as a neutral arbiter of facts and ...

One year has passed since the National Labor Relations Board issued its controversial “ambush” election rules, and as expected, the rules have caused a substantial reduction in the time between a union’s filing of a petition and the conduct of the election.

But in a surprise to many employers, the rules so far have produced virtually no change in the number of union election petitions and union victories. Many had predicted that the shorter campaign period would result in more unionization.

We previously have discussed that, as expected, the implementation of the NLRB’s ambush election rules in April 2015 considerably shortened the average time between the date of a petition being filed by a union and the date of election.  This change substantially impacts the employer’s ability to conduct an effective campaign in the event of a union petition.

In Danbury Hospital (Case 01-RC-153086), after an initial election victory for the employer, an NLRB Regional Director ordered a second election as a result of the employer’s non-compliance with the new ambush election rules. In doing so, the NLRB again demonstrates why employers should be vigilant and proactive in preparing for an election long before the arrival of a union petition.

Under the new rules, employers must, within two business days after the approval of an election agreement or the issuance of a Direction of Election, submit a voter list of employees’ “available” personal email addresses and personal cell phone numbers. These requirements differ from the old election rules in that previously, the employer was only required to provide a voter list of the employees’ full names and home addresses within seven calendar days after the approval of an election agreement or the issuance of a Direction of Election.

On July 29, 2015, the U.S. District Court for the District of Columbia held that the National Labor Relations Board (“NLRB”) had authority to adopt its new “ambush election” rules. These new rules, which became effective on April 14, 2015, made dramatic changes to the NLRB’s traditional rules governing union representation elections. The rules shortened the length of representation elections from approximately 40 days to as short as 11 days. In addition, the rule prevents employers from legally challenging an election until after its workers have voted. Business groups across the country have now begun the process of challenging these rules in federal courts. As we previously reported, the U.S. District Court for the Western District of Texas has already dismissed one set of petitioners’ challenges and upheld the ambush election rules. However, on August 10, the petitioners filed an appeal asking the Fifth Circuit to overturn the decision.

As we continue our discussion of the NLRB’s “quickie election” rules that went into effect on April 14, please join Hunton & Williams LLP for a complimentary interactive webinar.

The United States District Court for the Western District of Texas has just denied one of the employer community’s challenges to the NLRB’s ambush election rules.  As covered  previously, the Board’s new election rules, which went into effect on April 14, 2015, shorten the potential timeline for elections to be held 11 to 12 days after a union representation petition has been filed.  Several business groups have challenged the validity of the ambush rules in the federal courts. 

As expected, the implementation of the NLRB’s ambush election rules has spurred unions to initiate organizing campaigns across the country.  As discussed in our previous posts and a webinar hosted by the Firm, the new rules make it easier for unions to organize employees through an expedited election process, and makes it possible for elections to be held 11 to 12 days after the petition has been filed.  Recently released data confirms that a significant increase in petition filings occurred after the April 14, 2015 implementation date of the new ambush rules.  To summarize, an average of approximately 42 petitions were filed per week for the month of March to April 13th.  From April 13th to the beginning of May, the average number of petitions filed per week shot up to approximately 60.  Such averages are deceptive, however, in that the number of petitions filed per week has increased every week since the implementation date, rising to nearly 80 petitions filed for the last week of April.

If your company did NOT attend our recent webinar concerning the new Ambush Union Election rules, then please READ ON: