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Labor Board to Continue Tinkering With Union Election Rules (1)

Oct. 7, 2019, 6:37 PMUpdated: Oct. 7, 2019, 8:46 PM

The National Labor Relations Board next year will unveil a new regulation to update the ground rules for union elections, NLRB Chairman John Ring (R) said Oct. 7.

The board is “considering rulemaking regarding changes to the 2014 elections rules, the so-called ‘ambush’ elections,” Ring told a groups of labor and employment lawyers in New York. “We are looking right now at different aspects of those election rules that may require some changes and will be addressing those in the coming months.”

The NLRB is widely expected to extend current deadlines established by the Democrat-majority board in the Obama administration, which are meant to streamline the union election process by eliminating certain legal and procedural barriers. Critics say the current setup allows unions to launch surprise attacks by waiting until the last minute to file a petition and demanding that ballot boxes be opened quickly.

The board signaled early in the Trump administration that it wanted to revisit an Obama-era regulation that the business community dubbed the “ambush” or “quickie” election rule. But a proposal to scrap that rule in one fell swoop has remained on the NLRB’s long-term regulatory agenda, since the board asked for public comments in late 2017.

It has in the meantime rolled out proposals to address certain aspects of the union election process, including an employer’s voluntary recognition of a union for bargaining purposes and “blocking” charges often filed by unions to try to delay a likely unfavorable vote.

“I think that the rulemaking that you will see will be fine tuning,” Adam Abrahms, an attorney for Epstein Becker who represents businesses in labor-relations cases, told Bloomberg Law. “Not a wholesale reversion to where we were before the rule, but finding the areas where really there could be improvement.”

Unions and Democrats supporting the Obama elections rule say the board hasn’t done enough to justify a new approach so soon. They point out that while the time from petition to election has shrunk since the election rule was enacted in 2014, the win-loss rate at the labor ballot box has remained about the same. Unions continue to win about 70 percent of elections each year, although the latest data shows that jumped to 77 percent in the first half of this year, according to Bloomberg Law Analyst Robert Combs.

The election rule comes as the board under Ring has pursued a number of regulations to update policy, rather than through the NLRB’s traditional process of interpreting the law through individual case decisions.

The NLRB is working on a closely watched regulation to limit “joint employer” liability for companies in franchise and staffing arrangements. Ring told the crowd at Epstein Becker’s annual conference that the board also may use rulemaking to address limits on union access to employer property and questions about the appropriate size of collective bargaining units.

Ruling on Workplace Rules Coming

The board also is continuing to tackle labor issues through case decisions. The NLRB recently sought public input on labor law protections for workers who use profane language or engage in offensive conduct on the job.

Ring also said the board as soon as this week could issue a new decision clarifying restrictions on general workplace rules. The board in a 2017 decision involving Boeing’s ban on personal cameras on factory floors loosened restrictions on employee handbook and other policies that don’t directly limit workers’ right to engage in concerted protected activity on the job.

“There has been a lot of discussion about our post-Boeing decisions dealing with handbooks, policies, and other employer rules,” Ring said. “I can tell you that we are working on that. There may be a case out this week so watch for that.”

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com