NLRB Puts “Ambush Elections” On Fast Track

In March, Chairman Mark Pearce of the National Labor Relations Board refused a 30-day extension of the comment period on the controversial “representation case procedures” rule, sometimes called the “ambush election” regulation, submitted by the Board. Thus the NLRB has placed finalization on a fast track. Chairman Pearce previously voted for the regulation in its earlier form, and it is evident he intends to put it in place as soon as possible.

Currently, it takes at least 25 days from the date of a petition to hold an election to certify a union. The new regulation removes the 25-day minimum period and would pave the way for election periods in as little as 14 days.

The new regulation also eliminates the right of an employer to make pre-election appeals of critical rulings on the composition of the employee unit eligible to vote. It requires a hearing on pre-election issues within seven days of the filing of the petition. If employers want to raise issues concerning the union petition, they must raise them at that hearing, as they cannot raise issues on appeal that they failed to identify at the hearing. In addition, among other new obligations, it requires that before the election the employer provide the petitioning union with employee email addresses and telephone numbers.

A dissenting Board member says the proposed regulation creates a “vote now, understand later” election climate.

Absent an immediate injunction prohibiting its enforcement, employers in non-union workplaces should be prepared to respond quickly to an election petition.