ILMA Compoundings - January 2020 - 32

WASHINGTON LANDSCAPE

Union 'Ambush'
Elections Slowed
By Matthew Levetown

T

he National Labor Relations
Board (NLRB) recently issued
major changes to the controversial union election rule promulgated in
2014, known as the "ambush election"
rule. Under the existing rule, which
remains in effect until April 2020,
labor organizers can file a petition for
representation, conduct pre-election
hearings a week later and hold NLRBbacked union elections within two
weeks, affording employers little time
to address worker concerns or present
arguments. Additionally, employers
have other obligations that leave many
scrambling, which the new rule will
amend by extending deadlines and
converting them to business days. Ideally, more petitions will be withdrawn
under the rule changes - under the
2014 rule, roughly one-quarter of
petitions are withdrawn per year.
ELECTIONS THEN AND NOW
An employer will have eight business
days to file its statement of position on
unionization and elections, rather than

32

JANUARY 2020

| COMPOUNDINGS | ILMA.ORG

seven calendar days under the existing
rule. Employers will have more time
both to draft their arguments and
resolve worker issues, and employees
have time to consider both sides before
elections. Worker petitioners will also
be required to respond to the arguments presented by employers by the
day before the pre-election hearing,
giving more complete information and
data on the alleged benefits of union
representation.
The pre-election hearing, also known
as the "Direction of the Election," is
designed to afford unions and employers time to settle disagreements on
election details. In reality, a timeline
of eight calendar days is ill-suited to
resolving disputes, and important
disputes such as union scope and voter
eligibility can be delayed until after
conducting a vote. Under the new
rule, the hearing is held 14 business
days after an employer receives
notice of the petition (compared to
eight calendar days now). After the
hearing, both parties can file a brief
on unresolved issues, and any issues
not addressed before the election will
result in impounded ballots until the
NLRB makes a decision.
After the direction of the election
hearing, employers are currently
required to submit a voter eligibility
list directly to the union, including
personal contact information for its
workers, within two business days. As
a petition for representation requires
only 30% of employees to sign, a
minority of workers with grievances

results in the dispersal of private
information, including cellphone
numbers, home addresses and personal
email addresses. The upcoming rule
changes now allow five business days
to furnish the list to both the union
and the NLRB region office. However,
the breadth of personal information
required under the ambush rules will
still apply.
The NLRB regional directors presiding over the elections are required to
schedule the elections for the nebulous
date of "the earliest date practicable."
In practice, elections could be
scheduled for as soon as 14 days after
the filing of the petition and six days
after the direction hearing, hence the
epithet "ambush." While the NLRB
rule change will not provide a concrete
deadline on elections so that its
directors can adjudicate disputes and
extensions, elections will no longer
happen sooner than 20 business days
following the pre-election hearing.
Therefore, the absolute soonest an
election can occur is 34 business days
after a representation petition is filed.
In the event that the union wins
the election, NLRB directors are
obligated to certify the victory, even
if the employer is in the process of
appealing issues affecting the results.
A request for review of the election
must be filed within 14 business days
of the decision, providing both the
union and employer time to file briefs
on issues if the request is granted.
While the updated rule maintains
existing NLRB procedures for review,


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ILMA Compoundings - January 2020

Table of Contents for the Digital Edition of ILMA Compoundings - January 2020

LETTER FROM THE CEO
INSIDE ILMA
WHAT'S COMING UP
NEW MEMBERS
INDUSTRY RUNDOWN
COUNSEL COMPOUND
WASHINGTON LANDSCAPE
IN NETWORK
PORTRAIT
ILMA Compoundings - January 2020 - Cover1
ILMA Compoundings - January 2020 - Cover2
ILMA Compoundings - January 2020 - 1
ILMA Compoundings - January 2020 - 2
ILMA Compoundings - January 2020 - LETTER FROM THE CEO
ILMA Compoundings - January 2020 - INSIDE ILMA
ILMA Compoundings - January 2020 - 5
ILMA Compoundings - January 2020 - 6
ILMA Compoundings - January 2020 - 7
ILMA Compoundings - January 2020 - WHAT'S COMING UP
ILMA Compoundings - January 2020 - NEW MEMBERS
ILMA Compoundings - January 2020 - INDUSTRY RUNDOWN
ILMA Compoundings - January 2020 - 11
ILMA Compoundings - January 2020 - 12
ILMA Compoundings - January 2020 - 13
ILMA Compoundings - January 2020 - 14
ILMA Compoundings - January 2020 - 15
ILMA Compoundings - January 2020 - 16
ILMA Compoundings - January 2020 - 17
ILMA Compoundings - January 2020 - 18
ILMA Compoundings - January 2020 - 19
ILMA Compoundings - January 2020 - 20
ILMA Compoundings - January 2020 - 21
ILMA Compoundings - January 2020 - 22
ILMA Compoundings - January 2020 - 23
ILMA Compoundings - January 2020 - 24
ILMA Compoundings - January 2020 - 25
ILMA Compoundings - January 2020 - 26
ILMA Compoundings - January 2020 - 27
ILMA Compoundings - January 2020 - 28
ILMA Compoundings - January 2020 - 29
ILMA Compoundings - January 2020 - COUNSEL COMPOUND
ILMA Compoundings - January 2020 - 31
ILMA Compoundings - January 2020 - WASHINGTON LANDSCAPE
ILMA Compoundings - January 2020 - 33
ILMA Compoundings - January 2020 - IN NETWORK
ILMA Compoundings - January 2020 - 35
ILMA Compoundings - January 2020 - PORTRAIT
ILMA Compoundings - January 2020 - Cover3
ILMA Compoundings - January 2020 - Cover4
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