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NLRB’s New “Ambush Election” Rules Face Stiff Competition

posted Mar 12, 2015, 1:31 PM by Christopher Vrountas

Enacted by the National Labor Relations Board in December 2014 and set to go into effect on April 14, 2015, new NLRB regulations could potentially shift the balance of power in union elections strongly into the unions’ favor.  Commentators and the dissenting Board members believe that these new rules, taken together, could shorten the average union election process to as little as 14 days, less than half the current average of 38 days.  

Research by the Labor Relation Institute suggests that this change alone would be a significant boon to elections, as the likelihood of a union winning an NLRB election increases substantially as the duration of the election process shrinks.  For this reason, commentators have labeled these new rules as the “ambush election” rules.

The shortening of the election process results from a combination of changes to the rules.  For example, parties were previously allowed seven days following the pre-election hearing to file briefs.  Parties will, under the new rules, no longer be able to file briefs in most cases.  In addition, both the length of time within which a pre-election hearing must take place and the length of time after such a hearing within which employers must produce a list of employees have been shortened.  All of this taken together puts elections on a fast track.  This, however, is not the only benefit that unions will receive under the new regulations.

Current regulations require that an employer share with a union only its employees’ names and home addresses.  Under the new regulations, employers would also need to provide the union with its employees’ telephone numbers and email addresses if it possesses them.  Such information will also need to be provided to the union earlier in the process than previously required.  Among other changes in the regulations, the NLRB may under the new rules delay litigation of voter eligibility and inclusion issues until after the election, if it determines that the issues are not necessary to determine whether it is appropriate to conduct an election.

Because of the broad changes enacted by these rules, they face significant opposition.  On March 4, 2015, the Senate voted pursuant to the Congressional Review Act to halt the implementation of the new regulations.  The Republican-controlled House is also reviewing this issue and may agree with the Senate and send the bill to the President for signature or veto.  The President’s administration has already indicated its intent to veto the bill and clear the way for the rules’ enactment.  The Senate’s resolution passed by a margin of only 53-46, making the possibility could override the veto very slim.

In addition to the legislative challenge, the new rules are also being challenged in the courts in federal lawsuits filed by industry associations in both the United States District Court for the District of Columbia and the United States District Court for the Western District of Texas.  Both of these lawsuits are in the midst of summary judgment briefing, with the industry groups having filed their briefs asking the Court to declare the regulations unconstitutional and in excess of the NLRB’s authority.  The NLRB has responded to these arguments and has sought to dismiss the lawsuits for lack of jurisdiction.  It is unclear at this point whether either suit will result in a decision before the regulations go into effect on April 14, 2015.

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