Proposed ambush election rule from NLRB said to favor unions

A proposal from the NLRB is said to favor unions by cutting the time for campaigns

Businesses are carefully watching a proposed rule from the National Labor Relations Board (NLRB) about the campaign time before a vote for unionization takes place in workplaces. It appears to favor unions. 

The proposed ruling – frequently known as an “ambush election rule” – is seen as a key step to limit how nonunion employers and employees could oppose organizing efforts by unions. 

This rule was described as a “near rewrite” of the NLRB’s 2011 rule change “that briefly made it onto the books before being struck down on procedural grounds by a federal court in May 2012,” according to a report from the National Legal and Policy Center. 

“This rule change especially would hurt small businesses, which typically do not employ a labor issues counsel,” argues the National Legal and Policy Center, a group that tends to favor business interests. “The result would not be a level playing field. Election campaigns would be rigged in favor of unions.”

Just like in the earlier rule, opponents to a union drive would have as few as 10 days to campaign against unionization – as opposed to the 42 days now given to them. Now, such campaigns usually take about 38 days.

Some other steps under the proposed rule include:

  • Employers have to file a “Statement of Position” within seven days or lose the right to pursue any issues.
  • Requiring nonunion employers to provide employee personal information such as home addresses, e-mail addresses, home phone numbers and cell phone numbers to the union.
  • Ending a 25-day waiting period before holding an election.
  • Letting workers vote even if eligibility is challenged. Legal action would have to wait until after the election. 
  • Employers would no longer have an automatic right to a review of contested issues.

The National Legal and Policy Center said the ambush rule comes from the NLRB at a time when it has a 3-2 pro-union majority among its membership. 

Many businesses are concerned about the proposal. In his recent testimony before Congress, Steven Browne, a human resources director for the LaRosa’s pizzeria chain, said the “ambush election rule will fundamentally and needlessly alter the delicate balance that exists in current law that provides for the opportunity for an employee to make an educated and informed decision to form, join, or refrain from joining a labor organization… If adopted, the proposed regulation would severely hamper an employer’s right to exercise free speech during union organizing campaigns and cripple the ability of employees to learn the employer’s perspective on the impact of collective bargaining in the workplace.” 

Meanwhile, unions support the NLRB actions. "We applaud the National Labor Relations Board for proposing these commonsense rules to reduce delay in the NLRB election process," AFL-CIO President Richard Trumka said in a recent statement. "Similar rules were adopted by the NLRB more than two years ago after an exhaustive public rulemaking process. The rules were needed then, and they are still needed now." 

Similarly, attorney Caren Spencer testified before Congress that the “proposed rules will unquestionably reduce the number of days between the filing of a petition and an election, and provide more fairness and certainty to the process… The proposed rules reduce unnecessary delay, simplify the procedure, and permit the parties to seek board review after the election.”

But Doreen Davis, a labor and employment attorney, testified earlier this month before the House Committee on Education and the Workforce, the proposed rule is “likely to exacerbate, rather than alleviate, labor tension between employers and employees."

A 60-day comment period over the proposed rule ends on April 7. Next, there is a seven-day reply period. Some members of Congress want to see the comment period lengthened by a month. 


Related stories: 

NLRB shortens the union election time frame

Labor: NLRB’s posting requirement violated employers’ free speech rights

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Ed Silverstein

Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...

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