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Ambush Election Rule

On December 12, 2017, the NLRB issued a Request for Information (RFI) on the “ambush” election rule, which the Board issued in 2014 under the Obama administration. The RFI sought public input on the impact the rule had on employees’ and employers’ rights and whether the rule should be modified or eliminated entirely. On April 18, 2018, CDW filed comments on the RFI, urging the NLRB to restore reason to the representation election process and protect the rights of employers and employees alike.

The Board’s ambush rule drastically changed the process for NLRB-conducted elections in which employees may vote on whether they want to be represented by a union. The rule was designed to speed up elections in order to presumptively increase union density and dues revenue streams. This is all at the expense of employees, however, who, due to the rule’s rushed time frames, are denied the opportunity to hear from both sides of the debate prior to voting on union representation. The rule also severely undermined an employer’s rights of free speech and due process as well as its ability to present facts and views on the union at issue and unionization generally.

Some of the provisions of the Board’s rule included:

  • Requiring employers provide union organizers with all eligible employees’ names, home addresses, phone numbers, email addresses, work locations, shifts and job classifications, possibly exposing employees to harassment and intimidation;
  • Requiring pre-election hearings be held within seven days of the filing of the petition, giving employers little time to find appropriate counsel and understand the complexities of the laws governing union representation elections;
  • Requiring employers draft a “statement of position” to be presented at the pre-election hearing and setting forth their positions on all relevant legal issues, while any issues they fail to raise would be deemed waived, jeopardizing their right to due process;
  • Limiting the issues that may be litigated before an election, including employee eligibility to vote, 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.

In past sessions of Congress, members have introduced legislation to nullify the ambush election rule. CDW supported two of these bills – the Workforce Democracy and Fairness Act (H.R. 2776 & S. 1350, 115th Congress) and the Employee Privacy Protection Act (H.R. 2775, 115th Congress). We strongly encourage Congress to quickly reintroduce and pass these bills into law.

Furthermore, challenges to the 2014 rulemaking continue to make their way through the court system. In October 2018, for example, CDW, along with numerous other employer organizations representing various industries and millions of employers nationwide, filed an amicus brief before the Court of Appeals for the DC Circuit in UPS v NLRB, arguing that the rule denies employers their due process rights, and the NLRB in its review of the case failed to remedy those problems.

CDW will continue to fight against the abuses of the ambush election rulemaking via all available avenues.

 

Ambush Election Fact Sheet

Please see our resources page for more information on this issue.