Labor board asks public if it should keep union election rule

The National Labor Relations Board (NLRB) is asking the public to weigh in on whether it should keep or scrap a controversial Obama-era rule that speeds up union elections.

Business groups like the U.S. Chamber of Commerce have been pushing the NLRB to roll back the rule, which allows elections to be held in as few as 10 days from the filing of a petition. 

Opponents have dubbed it the “ambush election rule,” claiming it gives employers little notice of an election and almost no time to discuss the issues with their workers.

“The rule is heavily, heavily slanted to give unions a much easier path to election victory and … has cut the number of days in an election cycle by about 15, which enhances union win rates,” said Michael Lotito, labor and employment attorney and co-chairman of the Workplace Policy Institute at Littler Mendelson in San Francisco.

He said elections are now typically being held within 23 to 25 days. Under the old rule, elections were held an average of 38 to 40 days after a petition was filed. 

Under the new rules an employer has eight days from the time a petition is filed to hold a pre-election hearing to challenge the proposed union. As a practical matter, Lotito said it’s almost impossible for employers to move that fast. 

The AFL-CIO, the nation’s largest labor federation, hailed the Obama-era rule as a victory for workers. 

The NLRB, which experienced a power shift from Democrats to Republicans under President Trump, voted 3-2 to put out the request for information with Trump’s newly minted members Marvin Kaplan and William Emanuel siding with outgoing board Chairman Philip Miscimarra, whose term expires on Sunday at midnight.

The board’s two democratic appointees, Lauren McFerran and Mark Gaston Pearce, dissented from the ruling.

The public is being asked to submit comments by Feb. 12 on whether the rule should be kept as it, amended or rescinded. 

Last year, a the 5th Circuit Court of Appeals upheld the rule against a challenge brought by the Associated Builders and Contractors of Texas and the National Federation of Independent Business.

The court said the “board acted rationally and in furtherance of its congressional mandate in adopting the rule.”