The “quickie election” or “ambush” election rule that would dramatically shorten the time period before a union representation election is held is back on the table. This rule was first introduced in 2011 by the National Labor Relations Board (“Board”) and struck down by the D.C. Circuit Court in 2012. This month, the newly-constituted Board issued a notice of proposed rulemaking reintroducing the rule as a way to “modernize” the election process, according to Board Chairman Mark Gaston Pearce.
The rule would severely reduce the time between the filing of a union representation petition and the election, from 42 days to between 10 and 21 days, ambushing employers and hampering an employer’s ability to educate employees and express their views on unions. Another provision would require employers to produce voter contact information including phone numbers and email addresses to the union within two days of the Regional Director’s approval of an election agreement or direction of election.
It does not come as a surprise that the rule is back. When the D.C. Circuit Court held the rule invalid, it was based on procedure – only two Board members participated in the rule’s final vote, not the required three members. This problem was easily fixed by the newly-appointed Democratic Board. The two Republicans on the five-member Board have already expressed their concerns over the rule. They have questioned how employees will have the “fullest freedom” of choice with such a short amount of time to decide whether to support the union, and why the Board is promoting efficiency and conservation of Board resources above employee rights to have an informed choice and engage in protected pre-election speech. We will keep you updated as the rule winds its way through the rule-making process.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
