Does NLRB Chairman Miscimarra’s Dissent Hint at the Future of the “Ambush” Election Rule?

The last eight years under the Obama administration saw the National Labor Relations Board’s thumb weigh heavily on the side of organized labor, often to the detriment of employees. This can be expected to change as President Trump will have two vacancies to fill on the Board, and with the recently appointed Philip A. Miscimarra as its Acting Chairman. Chairman Miscimarra’s recent dissent in European Imports, Inc., Case 13-RC-19428, hints at the direction the Board may head over the next few years.

Chairman Miscimarra and former member Harry Johnson III opposed the Board’s adoption the expedited election rule that many have characterized as establishing “ambush” elections. Miscamarra and Johnson opposed the rule based upon concerns that the new procedures would delay decision of important questions about who was entitled to vote, and most importantly shortened the time for employees, unions, and employers to engage in protected speech that is crucial to the employees making an informed vote on whether to unionize.

In European Imports, these concerns were demonstrated to be more real than imagined, and Chairman Miscimarra penned a lengthy dissent criticizing the Board’s new election procedures. In particular, Miscimarra attacked the rule’s “preoccupation with speed” which “unduly prejudices the parties d and extinguishes the employees’ right to have a reasonable period of time to become familiar with election issues.”

Here, the date set for the election only gave three days’ notice to a substantial number of employees that they would be voting on whether they would have union representation. Miscimarra criticized the Board majority and the new rule as failing to live up to the Board’s duty “to assure employees the fullest freedom in exercising the rights guaranteed by the Act,” and highlighted that this approach to voting would be intolerable in any other context.

Chairman Miscimarra also challenged the Regional Director’s use of the new election rule to prevent the employer from introducing evidence of actual prejudice and denial of due process in this election, precluding the employer’s creation of a record that could be reviewed by the Board and any reviewing court.

As it stands, the new election rule remains the law of the land, but Chairman Miscimarra’s powerful dissent hints that its days may be numbered once new members are appointed by president Trump, and the Board is refocused on the employees’ exercise of free choice.

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