The NAED Government Affairs department is closely monitoring the developments related the to National Labor Relations Board and the Ambush Elections Rule, which goes into effect on Tuesday, April 14.
The following is a letter sent to members of the Coalition for a Democratic Workplace to update them on the situation.
CDW Members:
Despite our best efforts and after a four year battle, the NLRB’s Ambush Election rule will go into effect tomorrow, Tuesday, April 14. We remain hopeful a court will overturn the rule in the next few weeks, but as it stands now we expect the rule to go into effect tomorrow. Below are details on the lawsuits challenging the rule, Congressional efforts to overturn the rule and more information about the rule itself.
Lawsuits: CDW along with National Association of Manufacturers, the National Retail Federation, the Society for Human Resource Management and the US Chamber of Commerce filed suit challenging the Ambush Election rule in federal district court in DC. While we expect the decision from the judge in that case soon, it will not be issued before tomorrow. In addition, the judge in a second suit, which was filed in federal district court in Texas by state and local chapters of Associated Builders and Contractors and National Federation of Independent Business, has scheduled a hearing for April 24, ensuring there will not be a decision in that case in the next week. We will keep you posted on any developments in the litigation. In the meantime, you can find our briefs and other materials on the case here.
Congressional Review Act and Other Congressional Action: On March 31, President Obama signed a memorandum of disapproval which effectively pocket vetoed the Congressional Review Act Resolution to halt the Ambush Election Rule. CDW and many others lobbied hard for the resolution, which passed the House 232-186 and Senate 53-46. Its unclear right now if there will be an effort to override the veto. If there is an override vote, it must start in the Senate and will likely take place sometime this month. We will keep you posted. We also expect once the rule goes into effect, members of Congress in both the House and Senate will introduce legislation aimed at overturning all or parts of the rule. CDW will keep you posted on these bills and provide you with an opportunity to sign onto letters of support.
The Rule: The NLRB issued the latest incarnation of the final Ambush Elections rule on Friday, December 12, 2014. The rule will shorten the election process to as few as 14 days from the current median time of 38 days and deprive employers of due process. It will effectively restrict communication between employers and employees prior to a union election, leaving employees without access to important information before they vote.
Some of the key changes in the final rule are the following:
- Requires that all pre-election hearings be set to begin within 8 days after a hearing notice is issued.
- Mandates that employers file a “Statement of Position” by noon on the day before the hearing begins. The Statement of Position must include a list of prospective voters with their names, job classifications, work shifts, and work locations.
- Provides Regional Directors with discretion to limit the scope of pre-election hearings, by excluding evidence on voter eligibility and delaying the resolution of those issues until after the election.
- Requires an employer to provide, within 2 business days of the election agreement or decision directing an election, employee personal telephone numbers and personal email addresses.
The NLRB has provided details on the rule on its website here and the NLRB’s General Counsel has issued guidance on implementation of the rule here. Our counsel in the lawsuit, Morgan Lewis, put together this alert when the rule was issued and plans to offer a free webinar in the next few weeks. We will provide details on the webinar as they become available.
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