Hunton Employment & Labor Perspectives

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.

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.

On April 14, the National Labor Relations Board changed its rules for processing union elections. The new rules stack the deck against employers by decreasing the time between the filing of a petition and the election, which means that an employer now has less time to educate its employees about the potential impacts of unionization. The new rules also add procedural requirements that employers must address, which can distract the employer from the more important task of running its campaign. Given the significant changes, many have questioned whether it is possible to win an ...

As noted yesterday in our post, the United States District Court for the District of Columbia’s decision to strike down the National Labor Relations Board’s “quickie” election rules was based on a highly technical analysis.  Specifically, the Court found that the Board failed to obtain a proper quorum of at least three Board Members because of Republican Member Brian Hayes’ limited involvement in the rulemaking process.  However, the Court indicated that the Board might have authority to issue the quickie election rules if it musters a legally recognized quorum.

Late yesterday afternoon, Judge James Boasberg of the U.S. District Court for the District of Columbia struck down the National Labor Relations Board's recently passed "quickie" election rule. The Board's rule, published in December 2011 and purportedly effective as of April 30, 2012, amended election case procedures to significantly reduce the time between the filing of a union election petition and the holding of a representation election.

As we reported earlier, the path appears (at least temporarily) clear for the NLRB’s new “quickie election” rules to take effect.  In anticipation of the effective date, Board General Counsel Lafe Solomon last week issued a memorandum to all regional directors advising them on how to process union election petitions under the new rules.  While it is too early to tell how dramatically the General Counsel’s guidance will alter the labor relations landscape, it is clear from his memorandum that the Board intends to accelerate the current union election timeline as much as possible.

The NLRB's "quickie election" rules will go into effect today, April 30, in light of a federal district court decision denying a Motion seeking an injunction against the rule becoming effective. The Court indicated that it would issue a written opinion before the date on which any election could be held under the new rules. Our calculation is that, at least for now, the minimum time necessary for an election to be held after the filing of a petition is 17 days.

The  Court's Order reads:  “As the parties discussed in a conference call with the Court at 5:00 p.m. on April 27, the Court ORDERS that ...

In prior postings, we have reported about the potential effects that the National Labor Relations Board’s (“NLRB”) recent pro-labor composition could have on non-union employers and how it will become increasingly easier for unions to organize employees as a result of the NLRB’s recent decisions and procedural changes.  This posting focuses on the convergence of two potential developments – the likely change in the definition of “supervisor” under the National Labor Relations Act (the “Act”) and the NLRB’s recent proposal to expedite the procedures for union elections – and how these two developments combined could hamper an employer’s ability to effectively oppose a union-organizing campaign.

On December 20, 2011, the National Labor Relations Board (the “Board”) finalized what is being referred to by some critics as the “ambush election rule,” following its contentious November 30, 2011 2-1 vote in favor of its proposed revisions to the procedures by which it conducts workplace elections to determine whether employees do or do not wish to unionize.

This afternoon, the National Labor Relations Board ("NLRB") passed a resolution to amend several of its regulations that govern pre-election litigation procedures that will invariably pave the way for quicker elections in representation cases.  The resolution, which was proposed by Board Chairman Mark Pearce, authorizes the Board to issue a final rule that would make a number of procedural changes to its pre-election procedure, including the following:

Employers need to prepare themselves for the very real possibility of immediate and significant changes in the union election process which could result in shortening the time in which elections will be conducted.  In August, we wrote about the numerous changes to the procedures governing union elections proposed by the National Labor Relations Board (“NLRB”) as part of its rulemaking process.  These proposed changes, which most prominently include reducing the amount of pre-election litigation and shortening the time between the filing of a petition and the election, with elections being held as early as 10 days after a petition is filed, are significant.  If adopted, these changes would both alter the landscape of secret ballot elections and place employers at a severe disadvantage by giving them much less time to respond to organizing campaigns.

First introduced in the Employee Free Choice Act as an alternative to card check, the quickie election has been brought back as part of the National Labor Relations Board’s (“NLRB”) rulemaking process.  On June 21, 2011, the NLRB, with Board Member Brian Hayes dissenting, issued a Notice of Proposed Rulemaking suggesting numerous changes to the procedures governing union elections.  These proposed changes are significant and if accepted would both alter the landscape of secret ballot elections and place employers at a severe disadvantage.