Senate fails to overturn NLRB election 'ambush' rule

Senate fails to overturn NLRB election 'ambush' rule

The battle to overturn the National Labor Relations Board’s rule to shorten time frames for union elections will shift to the courts

April 24, 2012 | By Paul Frumkin

International Franchise Association officials voiced their disappointment Tuesday after the U.S. Senate failed to pass a resolution seeking to overturn the National Labor Relations Board’s rule to abbreviate the time frame allowed for union elections.

But despite the loss in the Senate, opponents of the rule say the battle over “ambush” elections now will shift to the courts.

Senators rejected a joint resolution, S.J. Res. 36, by a bipartisan vote of 54 to 45 that would have nullified a regulation passed late last year by the NLRB. The resolution was sponsored by Mike Enzi, R-Wyo.

The new rule, which is scheduled to take effect at the end of this month, will speed up union elections from an average of 38 days after a petition to unionize is filed to as little as 10 days. Opponents say the agency overstepped its authority by passing the rule.

“We see the vote today as disappointing,” said Jay Perron, vice president of government relations and public policy of the International Franchise Association. “But we knew it was going to be a tough vote to get passed.”

President Barack Obama’s last minute threat to veto any legislation attempting to override the rule also had a dampening effect on the vote, observers said.

“It became very political,” said Angelo Amador, vice president of labor and workforce policy for the National Restaurant Association.

Rob Green, executive director for the National Council of Chain Restaurants, said if the resolution had been passed “it would have sent a strong signal to the NLRB that they have been overreaching. But the education process continues and we’ve talked with a large number of lawmakers about NLRB’s ongoing activities.”

Proponents of the agency’s rule change maintain that it would streamline the election process by reducing delays in union elections. NLRB chairman Mark Pearce had said earlier that the current rule “is laden with unnecessary delays. It seeks to avoid multiple and unnecessary appeals in union elections, and does away with unnecessary waiting periods.”

Organizations like the IFA, National Council of Chain Restaurants and the National Restaurant Association have been urging their members to contact their Senators and ask them to oppose the NLRB rule. The NRA, in fact, made it one of its four priority issues last week when restaurant operators and executives gathered in Washington for the association’s Public Affairs Conference, when industry members visit Capitol Hill to lobby their lawmakers.

Late last year the U.S. House of Representatives passed The Workforce Democracy and Fairness Act, or H.R. 3094, by a vote of 234 to 188 that would override the NLRB’s ruling. With the recent Senate vote, though, that measure is “dead on arrival,” Perron said.
However, Green said, “the next fight is going to be in the courts. The litigation is ongoing.”

For example, earlier in April a federal judge in South Carolina ruled against the NLRB’s regulation that would have required companies to hang posters notifying employees of their right to unionize. Other litigation is addressing the right to form micro-unions, which theoretically could contain as few as two employees.

But while the associations see the Senate vote today as being a defeat, they maintain that some progress has been made. “We have talked to a large number of lawmakers about the NLRB’s ongoing activities,” Green said. “So we will just continue to tell our story. The education process continues.”

Read more: Senate fails to overturn National Labor Relations Board union election "ambush" rule | Nation's Restaurant News

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Senate Rejects Efforts to Overturn NLRB's Ambush Elections Rule

Publish Date:
April 26, 2012





Despite strong support from various trade association, including AWMA, and businesses across the country, the U.S. Senate failed to approve a joint resolution that would have made clear congressional disapproval of the National Labor Relations Board's "ambush" elections rule. The resoution, S.J. Res. 36, would have sent a strong message to the NLRB that the rule violates employers' rights and promotes unfair "quickie" elections.

The resolution was defeated 45-54 with only one Republican Senator, Lisa Murkowski of Alaska, in opposition. The White House had promised to veto the measure if passed.

The rule, set to take effect May 1, will speed up union elections from an average of 38 days after a petition to unionize is filed to as few as 10 days. Opponents say the agency overstepped its authority by passing the rule.

Senate Rejects Efforts to Overturn NLRB's Ambush Elections Rule | American Wholesale Marketers Association

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Blueprints: New NLRB rules challenged

Apr. 29, 2012

Written by Jim Evans




Throughout the past several years, the National Labor Relations Board and organized labor have struggled in their efforts to get federal legislation that supports and gives advantage to unions in their organizing efforts. In response, the NLRB has changed its strategy. They're using their rule-making authority to advance pro-union regulations. Two significant rules that support unions were adopted in 2011 and are slated to become effective this month.


One of these regulations requires most private sector employers to post an 11x17 notice to remind employees of their rights under the NLRB, such as the right to form, join or assist a union; collectively negotiate about their wages, hours, and other terms and conditions of employment; discuss terms and conditions of employment with coworkers and union representatives; join coworkers in submitting work problems directly to the employer, a government agency, or union; or to choose not do any of these activities, including not joining or remaining a member of the union.


The poster also lists examples of illegal activities that could be committed by employers or unions, and tells employees how to contact the NLRB with questions or complaints. The poster informs employees they can submit inquiries to the NLRB without having to inform their employer. It reminds employees that anyone can file a charge -- even when they are not directly affected by an employer's violation.


Originally, posters were to be displayed no later than Nov. 14, 2011, but because of legal wrangling pertaining to the NLRB's right to mandate the posting, the NLRB postponed the effective date to Monday. The legal challenges continue, and although the rule still remains on the books, the NLRB once again is delaying the posting date, this time indefinitely pending legal resolution. The DC Court of Appeals has scheduled oral arguments sometime in September.

Therefore, at least at this point in time, the NLRB says that it won't be enforcing its posting rule. In explaining the postponement, NLRB Chairman Mark Gaston Pearce said, "We continue to believe that requiring employers to post this notice is well within the Board's authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law."


The NLRB adopted another regulation that has received less notoriety than the posting rule, but which significantly will affect employers who face union organizing campaigns. The NLRB states it passed this rule to streamline and modernize the union election process. Normally, the timeframe for holding a union election extends about 41 days from the date the representation petition was filed, but the new regulation will shorten this timeframe to as short as 10 days.


Opponents have labeled this rule as the "Ambush Election Rule" because the shortened timeframe limits the time available for the employer to respond to a union organizing drive. Prior to the rule, employers could take up to 41 days to remind employees about their benefits and current terms of employment, and why, in the employer's opinion, employees should consider remaining union free. The union has time to get its message out before filing for representation, but the employer's time to respond to the filing is severely limited.

Supporters counter that the shortened timeframe is justified because it limits the opportunity for employers to commit unfair labor practices during the organizing campaign. Employers aren't permitted to commit unfair labor practices, but they are allowed to inform their employees of the advantages of remaining union free, as long as their message doesn't involve interrogating or spying on employees, or making promises or threats.


This rule is scheduled to take effect Monday. On Tuesday, in a last ditch effort to nullify the rule, a Senate resolution failed to garner enough votes. The failed vote came on the heels of a veto threat by President Barack Obama on the eve of the vote. However, it still is possible the rule will be delayed if a motion for injunction filed against the NLRB by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace is successful.

Blueprints: New NLRB rules challenged | Coshocton Tribune | coshoctontribune.com