Newly Confirmed NLRB Member May Help Kill ‘Ambush’ Election Rule

Employers hope Republican-controlled NLRB will reverse rule if legislation fails

By Allen Smith, J.D.
Sep 28, 2017 - SHRM

​The Senate's recent confirmation of William Emanuel to serve on the National Labor Relations Board (NLRB) means that Republicans now have a majority on the board—and hopefully will act quickly to reverse the "ambush" election rule, said Phil Wilson, president and general counsel of the Labor Relations Institute in Broken Arrow, Okla.

The Senate on Sept. 25 voted 49-47 to confirm Emanuel, an attorney with Littler in Los Angeles. Shortly before that, the House of Representatives sought to bury the ambush election rule, which could give workers as few as 11 days from the time a union petition is filed with the NLRB to consider all the consequences of joining a union before they have to vote in an election.

Signal to the Board

The House passed an appropriations bill (H.R. 3354) on Sept. 14 that included an amendment to prevent funding to implement the NLRB's ambush election rule. Labor attorneys give the amendment little chance of passing the Senate. However, Wilson said the amendment is important because it signals to the board that there is support in Congress for fixing the rule.

"The best way to ensure these policies don't get tossed back and forth like a political football is to legislatively overrule these decisions," he said.

Emanuel joins Republican Chairman Philip Miscimarra and Republican Member Marvin Kaplan, who the Senate confirmed on Aug. 2. Mark Gaston Pearce and Lauren McFerran are the Democrat board members. But Miscimarra will step down when his term ends Dec. 16. At that point, there may be an interval between the end of Miscimarra's term and the next Republican member's confirmation. During this possible gap, the board will be evenly divided with two Republicans and two Democrats.

Upon Emanuel's confirmation, Rep. Virginia Foxx, R-N.C., chairwoman of the House Committee on Education and the Workforce, and Rep. Tim Walberg, R-Mich., chairman of the House Subcommittee on Health, Employment, Labor and Pensions, noted in a joint statement that it was the first Republican majority on the board in nearly a decade.

"It's a new day at the NLRB," they said in a joint statement. "Today marks the end of a partisan era at the board, where we saw an activist agenda that empowered special interests at the expense of hardworking men and women. As the committee continues to undo the damage that's been done, we look forward to finally having a fair and balanced board that will serve as an impartial referee and protect the rights of workers and job creators."

However, Sen. Elizabeth Warren, D-Mass., urged senators not to vote for Emanuel, saying that he has represented many companies in his four decades of practice but has never represented workers. 

"A guy who has not even once represented workers should not serve on the NLRB. Period," she said. Someone who has fought off union efforts "has absolutely no business at the helm of an agency whose job is to encourage collective bargaining," Warren said.

The decline of unions accounts for about 20 percent to 30 percent of the growth in income inequality over the past several decades, according to the Economic Policy Institute. "When unions decline, all workers are hurt," she said. For the more than 40 million nonunion workers, the loss of unions over the past 30 years has been equivalent to an annual wage loss of approximately $109 billion, she said. She blamed large corporations for launching a "quiet but deadly attack on unions" and said the Supreme Court was poised to diminish unions' influence further.

'A Staggering Win Percentage'

The NLRB issued the ambush election rule in April 2015 to modernize union representation election procedures. The rule significantly shortened the period between the time a union files an election petition with the board to the union election from a median of 38 days in 2014 to 23 days in 2016, noted David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.

The shortened window hampers employers' ability to communicate their views on unionization, he said. In 131 elections held in less than two weeks from petition since the rule's implementation, unions have won 82 percent of the time, according to data from Fisher Phillips.

That's "a staggering win percentage," Pryzbylski said.

For employees, the shortened election period means they "won't have complete information to make an informed choice about union representation at the ballot box in any union vote," he stated.

"Forming a collective bargaining unit is a serious decision, and employees deserve the time to fully understand the process and how it will impact their livelihoods," wrote the Workforce Fairness Institute to Walberg on Sept. 7, following the introduction of his amendment to the appropriations bill. "Thanks to your amendment to H.R. 3354, there is now hope that ambush elections will come to an end."

The Workforce Democracy and Fairness Act

In contrast to the budget amendment, The Workforce Democracy and Fairness Act (H.R. 2776)—also sponsored by Walberg—would guarantee:

• Union elections would not be held less than 35 days from the date of the union petition to the NLRB for an election.
  
• Employers would have at least 14 days to prepare their case to present before an NLRB election officer and could raise concerns throughout the pre-election hearing.
  
• The board would determine the appropriate group of employees to include in the union before the union is certified and would address any questions of voter eligibility.
  

The full House of Representatives has not voted on this bill, however.

But now that the board has a Republican majority, the NLRB may react to the budget amendment by changing the way it handles elections, Wilson said. The amendment "could have the intended effect and justify a new rulemaking to reverse the rule," he stated.