Not So Fast: NLRB GC Urges Board To Modify ‘Ambush Election Rule’

Few developments at the National Labor Relations Board (NLRB) in recent years caused as much consternation for employers as the agency’s 2015 “ambush election rule.” That rule significantly truncated the amount of time a company has to express its opinion to its workforce on potential unionization by its employees prior to an election being held.

The NLRB announced on Dec. 12, however, that it was seeking input from the public regarding the rule. According to the agency’s press release, the NLRB specifically is evaluating whether the rule should remain as is, be modified, or rescinded in its entirety. The press release provides instructions for submitting feedback. The agency subsequently announced on March 14 that it was extending the deadline for public comment to April 18. The agency reportedly has received numerous comments from the public.

Peter Robb, General Counsel for the NLRB, now has weighed in on the ambush election rule as well. According to a recent report by Bloomberg BNA, Robb issued a memo to board members on April 18 outlining suggested changes to the rule, including modifications that would extend the time from when a union election petition is filed to the actual election taking place (i.e., the amount of time employers have to communicate their viewpoints to the workforce). His proposed changes include an extended deadline for when pre-election hearings take place and modifications to the NLRB’s “blocking charge” policy.

A recently released report from the NLRB confirms that the agency’s ambush election rule has shortened the time employers have to conduct union campaigns. Under the old rules, from April 14, 2014, through Jan. 12, 2015, the median time from a union petition being filed to election was 38 days. For fiscal year 2017, the median time from petition to election was 23 days – more than two full weeks shorter. In other words, that’s two weeks less time for companies to vet the issues giving rise to a petition and to implement a communications plan neutralizing those issues in order to remain union free.

This follows a similar report issued by the NLRB previously that also showed shorter campaign windows since the rules went into effect. A determination on the fate of the ambush rule is expected later this year. Stay tuned.

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• Ambush Election Rule