National Labor Relations Board Issues Final Ambush Elections Rule

ambush lowThe U.S. National Labor Relations Board (NLRB) passed regulations governing representation-case procedures under its National Labor Relations Act, which were first proposed in June 2011.

Representation-case procedures, also known as “ambush” elections, give more leeway to union organizing in companies through accelerated elections while denying employers the opportunity to address the union’s position prior to elections.

Here are some of the ambush election final rule’s significant provisions:

  • It requires a pre-election hearing within eight days of receipt of the election petition.
  • It requires the employer to submit a “Statement of Position” within seven days of receipt of the election petition. Importantly, if the employer fails to raise a particular issue in this filing, it would be precluded from presenting evidence on the issue or cross-examining a witness on the issue at the representation hearing. This raises significant due process concerns, particularly for those employers who cannot retain legal counsel.
  • It limits the issues and evidence that can be presented at a pre-election hearing, which may leave important questions unresolved prior to a union election.
  • It eliminates the employer’s ability to appeal pre-election decisions of the regional director.
  • It eliminates the 25-day “grace period” between the end of the hearing and the election. This will dramatically accelerate the election process, squeezing small business owners who lack the resources and legal expertise to navigate and understand the union election process within such a short time frame.
  • Upon receiving the direction of election, employers will then only have two days in which to assemble, create, and submit a final voter eligibility list (i.e., Excelsior list).
  • Employers must include employee addresses, telephone numbers and, where available, e-mail addresses of employees, in the voter list that will be turned over to union officials.

During the year leading up to this decision, IWLA joined the Coalition for a Democratic Workplace to fight against these amendments. Following the ruling, CDW issued a statement: “Today, the Coalition for a Democratic Workplace announced that it would sue to invalidate the National Labor Relations Board’s newly released rule that paves the way for unfair and illegal ‘ambush’ elections.”

“The NLRB’s rule is designed to prevent employees from gathering the facts before they cast a ballot for or against union representation,” says CDW legal strategist Josh Ulman. “The rule is yet another attempt by this agency to push the agenda of large labor unions at the expense of employees and employers. Time and again, the one-sided agenda of the president and his NLRB has been beaten back in court, and CDW will again look to protect millions of American workplaces by seeking redress through a lawsuit.”

Stay tuned for more.

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