NLRB Resurrects “Ambush” Union Election Rules

Labor & Employment @lert

Date: February 14, 2014

It’s déjà vu all over again. The National Labor Relations Board on February 5, 2014 reintroduced its controversial regulations for streamlining union elections, derided as “ambush election” rules by critics. The rules, initially introduced in June 2011, were met with widespread opposition by management groups. If adopted, the rules would substantially change the timing of representation elections. The current NLRB regulations provide for a period of approximately 42 days from a showing of interest sufficient to trigger an election to the election itself. Unions usually conduct an extensive campaign for many weeks or months prior to the filing of an election petition. The existing six-week schedule at least provides employers some time to present their views of the benefits and costs of unionization between the filing of the petition and the election. The proposed regulations would shorten the period to as few as five to 10 days.

A significant aspect of the proposed regulations, also intended to shorten the election period, would consolidate all election-related appeals to the NLRB into a single postelection appeals process. Current rules allow employers and unions to lodge legal actions, such as challenges to the proposed bargaining unit, before the election. Another provision would require employers to turn over to the union telephone numbers and email addresses of workers in the proposed bargaining unit, allowing unions to conduct a more effective campaign.

When initially introduced for comment in June 2011, the proposed rules were broadly criticized by management. In response, the NLRB issued a watered down version of that proposal in December 2011. However, those rules were struck down by a Washington federal judge in May 2012 as a result of a lawsuit brought by the U.S. Chamber of Commerce. The court did not consider the issue of whether the NLRB had the authority to issue such regulations, but rather struck down the rules as improperly enacted due to technical violations of voting rules.

The expedited union election rules join a number of other NLRB initiatives that have received a chilly reception in the courts. If the NLRB proceeds with the proposed rules, it seems further litigation is inevitable. In any case, employers who wish to avoid ambush elections will do well to be alert for any signs of union organizing. Employers at risk for unionization should be continually conducting their own education programs regarding the benefits of direct communication between workers and management. Thompson Hine offers an expedited union risk assessment and provides comprehensive guidance both before and during union election campaigns.

The NLRB has cast the changes as an attempt to avoid “unnecessary delay and inefficiencies” that “hurt both employees and employers,” according to NLRB Chairman Mark Gaston Pearce. The deadline for submitting comments to the NLRB is April 7, 2014. Those intending to prepare comments may wish to consult legal counsel for guidance.


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Stephen Richey


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