Ambush Election Rule
In February of 2014, the NLRB issued a proposed rulemaking imposing “ambush” elections on employers and employees. The rule drastically changed the process for NLRB conducted elections in which employees vote on whether they want to be represented by a union. The proposal was intended to increase union density and dues revenue streams at the expense of employees, who now do not have the opportunity to hear from both sides of the debate prior to voting on union representation, and employers, who are effectively denied free speech and due process rights.
Some of the provisions of the Board’s rule included:
- Requiring employers to provide union organizers with all eligible employees’ names, home addresses, phone numbers, email addresses, work locations, shifts and job classifications, further exposing employees to possible harassment and intimidation;
- Requiring pre-election hearings be held within seven days of the filing of the petition, giving employers little time to find competent counsel and understand the complexities of the laws governing union representation elections;
- Requiring employers to draft a “statement of position” to be presented at that hearing, which sets forth their position on all relevant legal issues, with any issues employers fail to raise in the statement deemed waived, jeopardizing an employer’s right to due process;
- Limiting the issues that may be litigated before an election, including employee eligibility, and dispensing with post-hearing briefs absent “special permission” from the hearing officer, risking confusion about the validity of the outcomes of the election;
- Eliminating pre-election Board review of a Regional Director’s decision; and
- Permitting electronic filing of election petitions and potentially electronic showing of interest, creating a risk of fraud.
An employer’s right of free speech and due process as well as its ability to present facts and views on the union at issue and unionization generally is severely undermined by the regulation. Legislation was pursued in the 114th Congress to nullify this rule but was not signed into law. A new Congress, President and Board have an opportunity to undo this rulemaking and give employees their protections back.
Ambush Election Fact Sheet
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