House Committee Holds Hearing on NLRB “Ambush Elections” Rule

On March 5, the House Committee on Education and the Workforce held a hearing to examine the National Labor Relations Board’s (NLRB) reintroduction of a rule to dramatically shorten the election window during union organizing campaigns to as little as 10 days. This proposed change to election procedures, commonly referred to as “ambush elections,” is detrimental to both employees and management as it hastens the union election process and significantly cuts the time employees have to review all of the facts.
The rule was first proposed in 2011 but was struck down by federal courts after the NLRB held a vote on the rule without a quorum of members present.
Witnesses testifying in opposition to the rule included a representative from the human resources industry and labor attorneys.
IEC has maintained that current election procedures are working well for employers and employees. In fact, according to the NLRB’s recently released 2013 Performance and Accountability Report, initial elections in union representation cases were conducted in a median of just 38 days from the filing of the petition. Unions are also already winning the majority of representation elections, and almost all of those elections are taking place within 60 days – 94.3 percent of all initial elections were actually conducted within 56 days of filing of a petition. This rate is above the NLRB’s self-identified goal of 90 percent, and the Board has met or surpassed its own internal time goals for elections and case handling consecutively over the past few years.
In a letter to the Committee, IEC expressed concern that the proposed rule will bar employees from having sufficient time to formulate an informed position on the impact of any changes to their workplace representation.  Further, employers will be shackled from providing the best and most accurate information to their workers by the requirement that they file a “statement of position” no later than an election hearing date – which would be held within seven days under the NLRB’s rule – outlining their position on all matters related to unionization. Any issues not identified in the statement could not be brought up at a later time. IEC believes representation elections should be a dialogue that flows between an employer and employees based on issues that are brought up during the discussion process. If there is potentially wrong or inaccurate information on either side, there should be an opportunity to respond accordingly.
At the conclusion of the hearing, Committee Chairman John Kline (R-MN) announced that he and Subcommittee on Health, Employment, Labor, and Pensions Chairman Phil Roe (R-TN) would be meeting with NLRB Chairman Pearce to discuss alternative options to streamline and improve the representation elections process without the need for the “ambush elections” rule.  
IEC will continue to monitor the progress of this rule. We plan to submit comments to the NLRB on the rule (due April 8, 2014) and will provide ample materials for our members to do the same.