“Ambush Election” Regulation Announced

December 12, 2014Articles
This morning, the National Labor Relations Board (“NLRB”) announced the implementation of the long awaited “Ambush Election” regulation. The rule is scheduled to take effect on April 14, 2015. The regulation will overhaul the election process through which labor unions are certified by the NLRB to represent workers.

The “Ambush Election” regulation was previously implemented by the NLRB but was withdrawn after federal courts concluded it was implemented without a quorum of the Agency’s members. The current regulation was approved by the three Democrat majority of the NLRB with both Republicans on the Board dissenting.

The new rule will dramatically affect the timing of representational elections. While a thorough analysis of the 86 page regulation is underway, the most dramatic change in the process will be a shortening of the period between the filing of a representation petition by a labor union and the election amongst an employer’s workforce. Currently, the average period between a petition and an election is approximately 40 days during which an employer and a union will campaign to persuade employees to vote either for or against union representation. Under the new regulation, elections may be scheduled in a dramatically shorter period of time. Critics of the proposed regulation have argued that by reducing the available time that the parties can “campaign” in the election process, the rule similarly reduces the amount of information the employees can assimilate before casting their votes and denies employers their rights under the National Labor Relations Act to communicate with their workforce.

After the first regulation was passed, many trade associations and interested parties filed legal actions to prohibit the implementation of the rule which were successful. A renewed legal challenge is a likely possibility.

A link to the National Labor Relations Board notice is attached here.

Upon completing a review of the regulation, Dinsmore will provide a detailed analysis to assist employers in preparing for the effective date of the regulation.