By: Howard M. Wexler, Esq.
Hoping that the third time is the charm, the National Labor Relations Board (“Board” or “NLRB”) has once again adopted its expedited election rules (aka “Ambush Election Rules”). We previously discussed the current version of the Ambush Election Rules here. The Ambush Election Rules have been proposed twice before by the Board and approved in part once, only to be ruled invalid by the United States District Court for the District of Columbia on procedural grounds).
The new Ambush Election Rules, which are scheduled to go into effect on April 14, 2015, would significantly change existing representation case procedures, including: shorter times for pre-election hearings and elections to be held ; additional Excelsior List requirements (e.g. providing employees’ email addresses and available telephone numbers (home and cell)); and no right to NLRB review of post-election disputes.
Several business groups have already filed lawsuits – one in Texas and the other in Washington D.C. – to stop the implementation of the Ambush Election Rules. In addition, 52 members of Congress sponsored a joint resolution on February 9, 2015 that would stop the implementation of the rule through the Congressional Review Act (“CRA”). Under the CRA, Congress can vote on a joint resolution of disapproval to halt a federal agency from implementing a rule or regulation without the express authorization of Congress
On March 4, 2015 the Senate passed the joint resolution by a vote of 53-45, which is the first step in the process of stopping the implementation of the Ambush Election Rules under the CRA. (Copy here). In support of the Senate’s passage of this joint resolution, Chairman of the Health Education Labor & Pensions Committee Lamar Alexander stating that, “The NLRB’s rule to shorten union elections to as little as 11 days allows a union to force an election before an employer has a chance to figure out what is going on… Senate passage of this joint resolution is an important first step in stopping the NLRB’s harmful rule and preserving every employer’s right to free speech and every employee’s right to privacy.”
It remains to be seen whether the pending lawsuits or legislation seeking to halt the Ambush Election Rules will succeed. However, given the implementation date is a little over one month away, we expect there to be a flurry of activity over the next few weeks. We will be sure to keep our readers informed as the battle over the Ambush Election Rules continues. Stay tuned!