Ambush Elections- NLRB

Regulatory Topic: Union Elections

Regulatory Agency: NLRB

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For nearly a century, the National Labor Relations Board (NLRB) has continually enacted policy changes around union organizing, election, and decertification procedures. On August 25, 2023, the Biden NLRB published a final rule, Representation-Case Procedures, which seeks to institute 10 new requirements intended to speed up union election processes and increase the likelihood of unionization. The rule’s “ambush” or “quickie” elections procedures are set to go into effect on December 26, 2023.

Workers and employers should be concerned with the new processes because the shortened union election timeline often leaves businesses with no time to learn how to handle union election procedures or communicate with employees about their own thoughts on unionization without violating new and existing rules. In fact, a union election could occur in as little as 14 days under the proposed changes versus a traditional process that has often taken 7 to 8 weeks. The new rule would press forward election procedures even in the face of valid legal challenges and unresolved questions around voter eligibility and how voting units are formed, which would be resolved after elections if at all.

The hasty process leaves workers with a lack of opportunity to be presented different perspectives and weigh the true costs and benefits of unionizing before an election is held, as well as potentially having no opportunity to vote by secret ballot on union representation if businesses fail to meet complicated NLRB demands. Dissenting NLRB Board Member Marvin Kaplan argued: “One is left to wonder how much the voters will actually benefit from the requirements that elections be held as quickly as possible when they find themselves exercising this right without fully understanding the arguments concerning representation and the ways in which their vote may affect them.”

Background and Brief History:

The NLRB, formed as part of the 1935 National Labor Relations Act (NLRA), oversees private sector union elections and related matters across the United States. By using labor cases brought before the board or advancing new rules, the NLRB can implement new policies that American workers and businesses must comply with, including by modifying the rules around how quickly union recognition and election procedures must occur.

Brief history:

  • December 2011 – the NLRB issues a new ambush election rule during President Obama’s first term.
  • July 2012 – DC district court invalidates the 2011 ambush election rule in Chamber of Commerce vs. NLRB because the NLRB’s 2 member board at the time was considered an insufficient quorum to promulgate new rules.
  • December 2014: President Barack Obama’s NLRB issued a final rule to drastically shorten the union election process time by implementing ambush elections, this time with a full NLRB.
  • March 2015 – President Obama vetoed a congressional resolution to stop implementation of the NLRB ambush elections rule.
  • Dec 2019 – President Trump’s NLRB proposed a new rule to make changes to the 2014 ambush elections rule. The rule was finalized in April 2020 but not fully implemented. However, several provisions remain valid until/unless the new Biden NLRB rule is implemented.
  • January 2023 – A number of the Trump era NLRB changes to the 2014 ambush election rule were invalidated by the DC Court of Appeals, which stated some aspect of the rule were too substantive to not go through rulemaking with a public comment process. However, a number of provisions were upheld including allowing 20 business days between an election petition and election, largely to help ensure legal, voting eligibility, and voting units matters can be resolved prior to union votes.
  • August 25, 2023 – New ambush election rule introduced in August by the Biden NLRB, largely restoring the Obama era ambush election rule.
  • December 26, 2023 – The new rule is set to take effect.

Key Details of New Ambush Election Rule

As summarized by Littler Mendelson law firm, the new rule makes 10 changes:

  • Pre-election hearings will take place eight calendar days from service of the Notice of Hearing (10 days earlier than the 14-business-day requirement under the 2019 rule).
  • Regional directors “can postpone a pre-election hearing for up to 2 business days upon request of a party showing special circumstances and for more than 2 business days upon request of a party showing extraordinary circumstances,” reducing the discretion to postpone pre-election hearings as compared with the 2019 rule.
  • The nonpetitioning party’s statement of position will be due seven calendar days after service of the Notice of Hearing (three days earlier than the eight-business-day requirement under the 2019 rule).
  • Regional directors “can postpone the due date for the filing of a Statement of Position for up to 2 business days upon request of a party showing special circumstances and for more than 2 business days upon request of a party showing extraordinary circumstances,” reducing the discretion to postpone the statement of position due date as compared with the 2019 rule.
  • Petitioning parties will respond orally to the nonpetitioning party’s Statement of Position at the start of the pre-election hearing, whereas they would file and serve a responsive written statement of position three business days prior to the pre-election hearing under the 2019 rule.
  • Employers must post and distribute the notice of petition for election two days after service of the Notice of Hearing, which will be due three days earlier than the five-business-day requirement under the 2019 rule.
  • Parties will have the opportunity for oral argument before the close of a representation hearing, and written briefs are allowed only where the regional director or hearing officer finds them to be necessary. Under the 2019 rule, parties had at least five business days following the close of hearings to file a brief.
  • The regional directors “will ordinarily specify” the details of election when they distribute the notice of election, rather than the permissive language (“Regional directors may”) prescribed by the 2019 rule.

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