NLRB Ambush Election Rule Redux | U.S. Chamber of Commerce
Feb 06, 2014 - 2:15pm

NLRB Ambush Election Rule Redux


Executive Director, Workforce Freedom Initiative

Crossposted from the Workforce Freedom Initiative blog. 

The National Labor Relations Board (NLRB) announced that it was issuing a Notice of Proposed Rulemaking (NPRM) to revive the ambush election rule that it has sought for several years.  Though the Board’s press release characterizes the proposed changes to its case handling procedures as ‘improving’ them, observers of labor policy know well that the NLRB’s objective is to hamstring employers facing organizing drives and give unions the upper hand.

As a matter of history, the ambush election rule has been on the table since the first NPRM was published in June 2011.  However, it faced procedural hurdles that year because of the impending departure of Member Craig Becker in December 2011, which led to the bureaucratic equivalent of a 50 yard dash to complete the final rule before the Board lost its quorum. 

After pushing through the rule just in the nick of time, a federal court subsequently halted its implementation in May 2012 because the 2-person Democratic majority failed to allow the lone dissenter, Republican Member Brian Hayes, to actually to vote on it.  With an appeal pending, the NLRB delayed implementation of the rule but withdrew that appeal in December 2013 in order to clear the decks for today’s action, as this blog predicted.  

The latest NPRM restates the original 2011 proposal because that is “the most efficient and effective rulemaking process at this time,” according to Board Chairman Mark Pearce.  Thus, as it did before:

  • The proposed rule would eliminate an employer’s right to file pre-election briefs.
  • The proposed rule would eliminate the ability to challenge any pre-election rulings by an NLRB Regional Director until after an election has taken place, thereby preventing an appeal involving a potentially tainted election until it was already over.
  • The proposed rule would eliminate the requirement that at least 25 days elapse between the direction of an election and the date of the election. 
  • The proposed rule would make Board review of post-election disputes discretionary.  Thus, if the Board didn’t wish to delve into campaign misconduct that might have led to a union victory, it simply wouldn’t have to do so. 
  • The proposed rule would require parties to submit detailed statements of position during a very short window prior to an election, which would make it nearly impossible for an employer to subsequently raise issues that were not included in that statement. 
  • Finally, employers would be required to turn over to unions additional personal information about their employees, such as home phone numbers and e-mail addresses (home addresses must already be provided).

Inasmuch as the proposal has not really changed, neither have the underlying issues behind it, which boil down to the NLRB acting as a union advocate rather than an impartial umpire.  Organized labor has long argued that the election rules put in place by the National Labor Relations Act (NLRA) and Board procedures somehow are responsible for a nearly 60-year decline in union membership.  In the minds of union sympathizers, the process to implement union elections takes too long and gives employers too much leverage, despite the fact that according to the Board’s own Acting General Counsel, the median time to conduct an NLRB election was 38 days, an achievement he characterized as “excellent” and “outstanding.”

With a 3-2 Democrat majority in place at the NLRB, reintroduction of the rule comes as little surprise, and it reiterates the pro-union tilt that the NLRB has taken in the last several years.  Given the failure of the “card check” bill of several years ago, the ambush election rule is one of several proposals that the NLRB seeks to revive the spirit, if not the letter, of that flawed legislation.

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About the Author

Executive Director, Workforce Freedom Initiative