Repeal Unfair Ambush Election Rule

Wednesday, January 4, 2017 - 9:30am

In Brief:

The Trump administration's appointees at the National Labor Relations Board (NLRB or Board), can roll back Obama’s ambush election rule – a regulation that erodes the rights of both workers and employers.  Congress should also amend the National Labor Relations Act to protect employees’ confidential information and ensure that union elections only take place after workers have enough time to consider the issues.  

Summary:

The NLRB’s ambush election rule became effective on April 14, 2015. The rule dramatically shortens the time period for workplace elections over whether to form a union, preventing workers from getting full and complete information from both unions and employers about a critical workplace decision.  The rule also requires employers to disclose their employees’ personal contact information to union organizers and undermines employers’ due process rights.

  • Employers must turn over employees’ personal information to unions, such as home phone numbers, e-mail addresses, shift times and locations, and home addresses.
  • With a tight time frame for elections, workers will not receive vital information about unions—information they need to make an informed decision.
  • Employers must file a formal Statement of Position within seven days of the notice of hearing being served.  Employers forfeit the legal right to pursue issues not included in that statement.
  • Issues of voter eligibility can be decided AFTER an election has taken place.
  • Employers’ automatic right to a post-election Board review is eliminated.  

This shortened election window gives unions a strong advantage.

  • A union has months to give workers its side of the story, and can then spring an ambush election when it feels the time is ripe.
  • The minimum 25-day period traditionally required before an election can be held has been eliminated.
  • Elections can be held in as few as 10 days from the filing of the petition, instead of the pervious average of 38 days.
  • Employers may have very little notice of an election and almost no time to discuss these issues with their workers.
  • Small businesses, without on-staff labor counsel, are particularly vulnerable to ambush elections because they may be unaware of the complicated laws related to union elections.

This rule is not needed.

  • Under previous rules, the NLRB handled election requests quickly. More than 95% of elections were held in less than two months.
  • For several years, the NLRB had surpassed its own internal time goals in handling elections, a feat the former acting General Counsel described as “outstanding.”
  • Unions already were winning more than two-thirds of all organizing elections.
  • Former NLRB Member Brian Hayes said the ambush election rule would “stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation.”  

The Board should:

  • Repeal the ambush election rule and return to the prior standard.
  • Conduct union elections in a fair manner that protects the rights of all parties.

Congress should pass legislation that:

  • Provides for a fair hearing process by allowing employers at least 14 days to prepare their case for the Board and allowing employers to raise particular issues during the hearing.
  • Prohibits ambush elections by requiring a campaign period of at least 35 days prior to an election. This will guarantee that workers have an opportunity to hear both sides of the unionization debate.
  • Allows employees to choose how they may be contacted by union organizers.