Late Friday afternoon, the National Labor Relations Board announced it will conduct a public meeting on November 30th to allow the Board to vote on finalizing portions of a proposed regulation commonly referred to as the “ambush elections” rule. While short on details, it appears the Board will not compress the time frame between when a certification petition is filed and the actual election date, but it will proceed with provisions eviscerating employer’s legal rights. An interesting side note about this is not only the timing of such an announcement- late in the afternoon on a Friday right before a major holiday- but, it is strangely curious the Board chose November 30th for the meeting, which just so happens to coincide with when the House is likely to take up legislation addressing the Board’s proposed rule on representation elections – an unlikely coincidence.
The offending provisions of the rule severely limit the legal options available to employers to challenge certain aspects of union representation elections. The most egregious part of the rule to be voted on would require an employer to declare, within seven days, all issues the employer intends to challenge. If the employer does not state all challenges within the time frame, the employer will forever forfeit their right to bring it up at any later date. The rationale offered by the Board in stripping these basic rights away from employers will have the opposite effect than intended.
The Board claims it is trying to streamline the election process to reduce frivolous litigation from delaying representation elections. Despite offering no evidence of employers routinely using deleterious legal tactics to stall elections, the Board has deemed it necessary to “streamline” its procedures in order to solve a problem that doesn’t exist. What’s more, the non-existent problem is so serious the Board must circumvent its own protocols in order to address it. But, what’s a little protocol and precedent among friends, right?
Faced with losing the right to legal recourse if an issue isn’t stated at the beginning of the process, employers will be forced to litigate more in order to protect the very rights the Board is trying to limit or take away if they don’t exercise them.
Imagine the NFL requiring the visiting team to submit the plays they intend to run before the game. If the plays were not submitted the team couldn’t run them. Why would a coach submit anything less than the full playbook even with the knowledge that half or more of them would never be used? Wouldn’t it be malpractice to submit less? So too, will it be if these new rules are finalized by the NLRB -but, unlike the consequences in football, the result will be more costly and delay or stifle the creation of jobs – precisely the opposite effect the Board intends.
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