NLBMDA: NLRB Reissues “Ambush Election” Rule

On February 6, the National Labor Relations Board (NLRB) issued a new version of the “ambush election” rule.

On February 6, the National Labor Relations Board (NLRB) issued a new version of the “ambush election” rule, which would significantly shorten the time period between a Union filing a representation petition and a representation election taking place. If the rule takes effect, the time frame for a Union election could be reduced to as few as 10 days. The new proposed rule is similar to the original rule issued by the NLRB in June 2011, which was later scaled back in December 2011 and then invalidated by a federal court.

Changes to the pre-election process under the rule would be bad for employers.

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First, it reduces from 14 days to seven days the time for scheduling a pre-election hearing following the filing of the petition. Second, employers are required to state their position on unit issues by the start of the pre-election hearing before any other evidence is accepted. Third, issues related to voter eligibility are deferred until after the election. Fourth, it eliminates any automatic right to post-election Board review of contested issues.

Statistics show the Union election process does not need shortening as the current rules are working for both employers and employees. Unions won 64% of private sector elections both in Fiscal Year (FY) 2012 and FY 2013.

Almost all Union elections take place within 60 days. Currently, the median time between petition and election is 38 days.

According to the NLRB, in FY 2013, 94% of Union elections took place within 56 days or less from the time the representation petition was filed until the representation election was held.

That rate is higher than the Board’s selfidentified goal of 90%, and marks the 13th consecutive year it has exceeded the Board’s goal.
The shorter the election, the less time employers have to communicate with employees about a Union attempting to organize the workplace. By restricting businesses’ rights to appeals during the pre-election process the proposed rule benefits Unions, while also greatly limiting worker access to information needed to make an informed choice about Union representation.

Evolution of the Rule

After the NLRB issued the original proposal in June 2011, numerous employer groups including the Coalition for a Democratic Workplace (CDW), of which NLBMDA is a member, filed written comments in opposition to the rule.

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