New Proposal is Similar, if Not Identical, to Rule Originally Proposed in 2011
The original ambush election rule proposed in June 2011 would have significantly altered the entire union representation election process to favor unions by limiting employers due process rights to effectively shorten the time between when the union petitions for election and the Board conducts the election. Right now, the median time between petition and election is 38 days. Under the original ambush election proposal, the time frame could have been as short as 10 days. The shorter the election, the less time employers and employees have to communicate about the general disadvantages of unions or about a specific union attempting to organize the workplace. Thus, the original ambush rule would have trampled businesses’ free speech and due process rights, while also greatly limiting worker access to information needed to make an informed choice about union representation.
Other provisions in the original rule included: (1) requiring pre-election hearings be held within seven days of the filing of the petition; (2) requiring employers to draft a “statement of position” to be presented at that hearing which sets forth their position on all relevant legal issues; and (3) requiring employers to provide union organizers with employees’ private information. With respect to the later, the Board’s proposed rules would have require that employers give the union—in addition to names and addresses—employee phone numbers, email addresses, work locations, and shift and classification details.
The NLRB’s Notice of Proposed Rulemaking opens a 60 day comment period, set to close on April 7, 2014. ABA will continue to review the ambush election proposal and will submit comments, as appropriate, on this issue.