Over 50 speakers testified, some of them on multiple panels, during the National Labor Relations Board’s two-day public meeting on representation election (“R-Case”) procedures on April 10-11. The oral testimony was part of the notice of proposed rulemaking (NPRM) on the Board’s proposed revisions to its union representation election procedures, which employers refer to as the “ambush” election rules. The comment period for the rule expired on April 7, 2014

The testimony was before the full Board consisting of Chair Mark Gaston Pearce and Board Members Nancy J. Schiffer, Kent Y. Hirozawa, Philip A. Miscimarra, and Harry I. Johnson, III. The Board sought input on approximately 20 different issues under the proposed NPRM, which would make significant changes to the Board’s pre- and post- representation election procedures.

Same Rule as Proposed in 2011 NPRM Written comments were filed by April 7 in response to the current 2014 NPRM, in addition to the more than 65,000 previously filed written comments and oral testimony from the record of the original 2011 NPRM on the same proposed rule. The rule was originally proposed in 2011; thereafter it was modified and issued as a final rule without several of its most controversial provisions. Ultimately, the rule was blocked by the U.S. Court of Appeals for the District of Columbia due to the Board’s failure to act on the rule by a quorum of Board members. The Board withdrew the 2011 rule as modified and reissued the current NPRM on the rule as originally proposed, including all of its controversial provisions, rather than proposing the final rule as modified and issued in 2011.

Among the expert witnesses at this year’s April 10-11 hearing was Ogletree Deakins’ founding shareholder—a labor law practitioner with 50 years of experience—Homer L. Deakins who was representing Mercer LLC’s Council on Labor Law Equality (COLLE), a network of senior labor relations executives from the nation’s largest companies. Mr. Deakins testified specifically about,

  • the proposal’s expedited timing of the pre-election hearings;
  • the proposal’s exclusion of pre-hearing litigation on bargaining unit questions such as supervisory status until after the election;
  • the proposal’s requirement that an employer identify all potential bargaining unit issues in its statement of position or forever waive them;
  • the types of matters that should be resolved at the pre-election hearing;
  • the proposed rule’s election dates; and
  • the manner in which the rules should address voter lists, which under the proposed rules would require disclosure of employees’ home addresses, personal phone numbers and email addresses, and work shifts.

Testimony Witnesses Other witnesses included former NLRB members and General Counsel. Witnesses favoring the rule included union lawyers, together with representatives of the AFL-CIO and many other unions, including the Service Employees International Union (SEIU), Communications Workers of America (CWA), United Food and Commercial Workers International Union (UFCW), the International Union of Operating Engineers (IUOE), International Brotherhood of Electrical Workers (IBEW), Laborers’ International Union of North America (LIUNA), International Brotherhood of Boilermakers, the American Federation of Teachers (AFT), Visiting Nurse Associations of America (VNAA), and the United Nurses Association of California/Union of Health Care Professionals (UNAC/UHCP).

Witnesses opposing the rule included management lawyers and representatives of business organizations such as COLLE, the Coalition for a Democratic Workplace (CDW), the U.S. Chamber of Commerce, the National Association of Manufacturers (NAM), the National Federation of Independent Business (NFIB), Associated Builders and Contractors, Inc. (ABC), the Retail Industry Leaders Association (RILA), the International Franchise Association (IFA), the National Grocers Association (NGA), the HR Policy Association, the American Hospital Association (AHA), the Tennessee Chamber of Commerce, and the Society for Human Resource Management (SHRM). Other organizations opposing the rule changes included the National Right to Work Legal Defense Foundation, the Workforce Fairness Institute, and the Competitive Enterprise Institute (CEI). Deakins’ Testimony

In his testimony on behalf of COLLE, Mr. Deakins questioned the need for overhauling the Board’s election rules, which have worked well in guaranteeing fair and expeditious representation elections. He stated: “These proposed rules make revolutionary changes in the Board’s traditional representation election process for no apparent reason other than to help unions win elections.” According to Mr. Deakins, the proposed rules, turn the old saying “Justice delayed is justice denied” on its head. Under these rules, “justice is denied” by a mad-dash rush to judgment before employers can exercise their statutory right to educate employees lawfully and in a non-coercive manner so employees are fully informed by both sides—not simply the union—prior to making the most important decision in their working lives.

Mr. Deakins said, the revisions would deny employees the right to become informed before they cast their vote—essentially, the right to ‘think,’ which legendary labor leader Samuel Gompers described years ago as ‘the most valuable thing on earth: time to think, time to act, time to extend our fraternal relations.’ Yet, ‘time to think’ before casting a fully-informed vote in a union representation election is exactly what the proposed rule revisions would deny to employees.

Mr. Deakins agreed with Member Miscimarra’s and Member Johnson’s dissent to the NPRM, which termed the rule as “vote now, learn later” on issues such as voter eligibility, supervisory status, and other bargaining unit issues that would be determined post-election. While speeding up the election and denying employees their right to make an informed choice, the rule would not save much time overall by deferring litigation until after the election, he said. He also decried the rule’s preclusion of evidence or testimony on any issue not raised by the employer’s formal written Statement of Position, which is required under the rule to be filed within seven days following the union’s petition for election. The new rules, according to Mr. Deakins, would reduce the time for an election to as little as 10-21 days from the union’s petition for an election. “Even then-Senator John F. Kennedy stated in 1959 that elections should not be scheduled for a minimum of 30 days ‘as an additional safeguard against rushing employees into an election where they are unfamiliar with the issues,’” Deakins pointed out. He also noted: “There is no credible empirical evidence that the current time period—elections generally within 31 days—does not result in fair elections which,” as he noted, “unions already win two-thirds of the time.”

The proposed rules have been coined the “ambush” election rules by employers because unions control the timing of filing petitions for election when they reach their peak support among employees based on card signing, often after months of silently campaigning among employees without the employer’s knowledge and when employees have heard only the union’s promises. The proposed rules would force “quickie” elections shortly thereafter, before employers have a chance to engage unions in what the Supreme Court has termed a full, robust and “free debate” on the issues so that employees are given adequate time to become fully informed before casting their votes. Mr. Deakins noted, following his testimony, that in effect it’s the employees who are truly “ambushed” by the proposed “quickie” election rules with little or no time to become informed on the issues or which of their fellow employees would be included in the bargaining unit.

What’s Next?

The extent to which the Board will consider these public comments or whether the “die is cast” and the rule will closely follow the proposed rule as many expect is uncertain. The formal comment period has closed and the wait for the final rule now begins. The Board is faced with a December deadline when Member Nancy Schiffer’s term expires and the Board could face a potential 2-to-2 deadlock. Most observers expect the Board to issue a final rule well before then, and if the final rule remains largely unchanged many predict it will be challenged immediately in court. Also, legislation has been introduced in Congress to prevent the proposed so-called “ambush election rules” although prospects for enactment of the legislation are unlikely. We will keep you informed of related developments and will discuss both the proposed rule and offer guidance on how to prepare for the world of ambush elections at Ogletree Deakins’ upcoming national seminar, Workplace Strategies 2014, which will be held on May 7-10 at the Bellagio in Las Vegas and at the next Not Your Father’s NLRB program, which will be held on June 5-6 in Washington, D.C.

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