NATIONAL LABOR RELATIONS BOARD TAKES ACTION ON “AMBUSH” ELECTIONS

Posted by Graham Dail, Senior Consultant, The HR Group, Inc. on 6 December 2011 | 0 Comments

In a November 30 action that was approved along party lines, the NLRB approved "Ambush" elections. The vote was 2 to 1 with Chairman Mark Pearce and Craig Becker (both recent appointees) voting for the resolution and Member Brian Hayes strongly dissenting. The scheduled vote was a "race to the finish line" that was intended to pass the procedural change by the end of Becker's recess appointment, which expires at the end of this year. The resolution passed over Hayes strong objections based on a number of long standing NLRB practices and precedents and his objection to ignoring 75 years of tradition that supported not passing a rule with only two votes in favor.

Currently, the Board has only 3 members, the minimum required by law to enact changes. Two of these (Pearce and Becker) are democratic party appointees and one (Hayes) is a republican appointee. Once Becker's recess appointment expires at the end of this year, the Board will only have two members (Pearce and Hayes) and will effectively be out of business until the President appoints replacements. However, the Congress is not likely to approve his appointments at this point.

Republicans and business groups said their main gripe with the plan was that it would prevent employers from challenging certain aspects of union elections before the voting occurs, including whether certain workers are eligible to vote and be part of a bargaining unit. For instance, employers sometimes argue that certain workers should be classified as supervisors, and therefore aren't eligible to unionize.

While this limited resolution was passed based on Pearce and Becker's votes, it did not include some of the more onerous provisions the Board has been discussing, such as requiring employers to provide email addresses to unions.

In supporting this resolution, Chairman Pearce stated that "workers have a right to a secret ballot election" and Becker commented that "employers should not be allowed to use unnecessary delay and wasteful litigation to prevent them (workers) from voting. Hayes commented that the proposal was unacceptable and "fundamentally flawed."

The Republican dominated House continues to seek ways to limit the authority of the NLRB and recently took action to limit the results of the Board's decision by introducing legislation that:

• Provides employers with at least 14 days to prepare and present their case before a NLRB election officer and other rights throughout the election process.
• Guarantees workers have the ability to make informed decisions by requiring that no election will be held in less than 35 days.
•  Reinstating the definition of bargaining unit by defining which employees will vote, preventing the possibility of "micro-unions".
• Empowering workers to choose the type of personal contact information that can be provided to unions.

This most recent decision by this NLRB continues the Board's tilt and, according to some Board watchers, push for unfair and overreaching when it comes to ambush elections and micro-unions.