'Ambush' Election Rule Under Fire

A bill that would ultimately undo the "ambush" election rule seems poised to pass, which experts say would provide employers with more time to make the case against unionization. 

By Mark McGraw

The House Committee on Education and the Workforce has been busy of late, approving three bills that would change labor policies under the National Labor Relations Act.

One of these measures -- the Workforce Fairness and Democracy Act -- would undo the National Labor Relations Board's "ambush" election rule, which cut the waiting time for union elections down to as few as 10 days. Before the NLRB rule was passed in 2015, the average amount of time elapsed between filing an election petition and the actual election was roughly one month.

Tom Luetkemeyer, a Chicago-based labor and employment attorney and partner at Hinshaw & Culbertson, foresees the Workforce Fairness and Democracy Act going the distance.  

"I think the bill has a good chance of becoming law," says Luetkemeyer, "given the current makeup of the Senate and the House, not to mention the White House."

The current administration has certainly shown an affinity for seeking to roll back legislation in favor of employer-friendly regulations and legislation that would generally be considered more employer-friendly. In June, for example, the Department of Labor under President Trump issued a notice of proposed rulemaking that would formally rescind the so-called "persuader" rule, which expanded the scope of reportable persuader activity for employers and outside labor relations consultants, including attorneys.

Experts predict the persuader rule will soon fall by the wayside. Employers and HR leaders would have reasons for wanting to see the ambush election rule do the same, says Luetkemeyer.

"I think the [2015 ambush election rule] rule was designed to perhaps help union elections be properly resolved. But it also gives unions a tactical advantage, because they get to decide when to file the petition," says Luetkemeyer. "Unions can typically campaign for months before an employer is even aware that there's an organizing drive going on. With an 11- or 12-day election process, the union controls when the election occurs. That's a huge advantage for the union."

Mark Keenan, an Atlanta-based partner at Nelson Mullins Riley & Scarborough, agrees that the act will end up on the president's desk.

Moreover, "I definitely think President Trump would sign it into law," says Keenan. "The biggest issue might be that, with everything else going on -- the healthcare bill, tax reform and so on -- this bill might not be a priority.”

That said, the WFDA "might be the best chance to get rid of the ambush election rule," says Andrew Prescott, a partner and office managing partner in the Providence, R.I. office of Nixon Peabody.

Establishing reasonable, minimum time periods in which employers can prepare for a board hearing and disseminate information about the consequences of voting for a union "should not foment the level of opposition necessary to defeat the bill," says Prescott.

Extending the stretch of time between petition filing and the election would indeed be critical for employers and employees alike, adds Keenan.  

"I think [the Workplace Fairness and Democracy Act] would be beneficial for the company and employees," he says. "That added time provides more opportunity for employers to communicate its view on why unionization might not be in the best interest of employees. For the election to really be fair, you need time to educate the workforce."

Ultimately, the current rule's rescission would mean the difference between victory and defeat for employers in some cases, he says.

"In elections in small units in particular, additional time to convince a few key voters can swing an election. The importance of pre-petition preparation for a campaign will not period after the filing won't be quite such a nightmare, time-wise," says Prescott, adding that revoking the ambush election rule could also decrease the number of unfair labor practice charges filed.

"Employers who have a reasonable amount of time can be more thoughtful and obtain legal and other expert advice about the content of communications and the legality of campaign tactics."

While it might only be a matter of time before the ambush election rule is no more, employers must remember that it still applies -- at least for the moment, says Luetkemeyer.

"HR leaders have to remain very vigilant about union-organizing activity in the workplace. If they aren't, they're missing an opportunity to campaign or present their side of the story to their employees," he says.

"Just because a union hasn't filed a petition, that doesn't mean an employer can't be taking certain proactive steps to let employees know they're working in a reasonable environment with competitive wages and good benefits," concludes Luetkemeyer. "Organizations need to be thinking about practical steps to demonstrate the benefits of their workplace to employees. There's no reason employers can't be doing that on their own, and it becomes that much more important to do so with this rule currently in effect."

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Jul 31, 2017
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