Because the team I was pulling for in the NCAA tournament exited last week, I was only loosely paying attention to the game last night. As I cruised Twitter, this tweet from Acting NLRB Chair Miscimarra (R) caught my eye:
Sure enough, when I read the case to which he links, it turned out to be a dispute over the application of the NLRB’s election rule. As readers of this blog know, this rule has also been referred to as the “quickie” or “ambush” election rule.
Acting Chair Miscimarra’s dissent is a quick and interesting read. But, for those pressed for time, here is a short summary. The Teamsters filed a petition for a union election. The NLRB regional office, processing the petition under the new election rule, which places a premium on scheduling an election as soon as possible, set a hearing for ten days after the petition was filed. It sent notices to the employer for posting in the workplace about the election petition.
Both before and at the hearing, however, the employer and the union agreed to add some employees to the unit that were previously excluded and remove other employees previously included. While the employer sought to introduce evidence at the hearing regarding how the election rule prejudiced it as applied in this particular case, the Regional Director refused to permit that evidence. Instead, three days after the hearing, the Regional Director issued a direction of election and set the election to take place only seven days later.
As a result, some of the employees would have only received notice that they would be included in the election as little as three days prior to the vote. The NLRB majority refused to delay the election to provide for more time, noting instead that the employer could file an objection to the election after it was over. Acting Chair Miscimarra, however, dissented and would have granted the delay. Whether the employees got seven days notice or three days, it wasn’t sufficient and the process unfairly prejudiced the employer in this case.
Interestingly, the vote ultimately came out against the union. However, the case underscores the impact of the election rule on the timing of the vote. It is, therefore, an important reminder to labor professionals about the need to be prepared for union organizing activity.