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Ambush Elections Rule

In 2014, the National Labor Relations Board (NLRB) under President Obama issued an “ambush elections” rule that undermined the mission of the Board to promote efficient, fair, and accurate union representation elections. In order to undo the damages caused by this rulemaking, the Trump-era NLRB issued two Final Rules restoring balance to the election process.

In December 2019, the Board issued its Representation Case Procedures Final Rule. As the Board explained in its press release announcing the Final Rule, “the selective changes create a fairer and more-efficient election process.” The Final Rule includes “clarifications to procedures prior to an election that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues” and “permit parties additional time to comply with the various pre-election requirements instituted in 2014.” CDW supports the changes made by the Final Rule and submitted comments on the Board’s initial Request for Information seeking public input on the impact of the ambush elections rule on employer and employee rights.

Unfortunately, five provisions of the Final Rule were blocked by the US District Court in May 2020. The court did not, however, vacate the rule in its entirety, allowing the Board to move forward with implementing the majority of the rule’s changes. A list of those changes, which went into effect on May 31, 2020, is provided by the NLRB in its press release announcing their implementation.

Additionally, in March 2020, the Board issued its Election Protection Final Rule, which made three critical changes to the Board’s procedures. The Final Rule replaced the current blocking-charge policy, which paused union decertification elections if an Unfair Labor Practice charge was filed against the employer until the charge was settled. In its place, the Board will allow votes to be held but will either impound or count the votes, depending on the nature of the charge. The Final Rule also created a 45-day window for employees to file for a decertification election if their employer voluntarily recognizes a union. Finally, the Final Rule requires a union in the construction industry to prove they have majority support from the workers before a collective bargaining agreement or voluntary recognition can be established. CDW submitted comments on the Board’s initial rulemaking proposal in January 2020.

The Obama Board’s ambush elections rule drastically changed the process for NLRB-conducted elections in which employees vote on unionization. The rule was designed to speed up elections in order to presumptively increase union density and dues revenue streams. This was done 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 employers’ rights of free speech and due process as well as their ability to present facts and views on the union at issue and unionization generally.

Some of the provisions of the ambush elections rule were:

  • 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.

Democrats in Congress are trying to codify the ambush elections rule into law. In the 116th Congress, the House passed its Protecting the Right to Organize (PRO) Act, H.R. 2474 (Senate companion, S. 1306). The bill would have made the ambush elections rule, with all its disastrous policies, the law of the land, flouting worker and employer rights in the process.

Congressional Republicans, on the other hand, are working to nullify the ambush elections rule and prevent future administrations from attempting to implement it. In the 115th Congress, they introduced the Workforce Democracy and Fairness Act (H.R. 2776 & S. 1350) and the Employee Privacy Protection Act (H.R. 2775), all of which CDW supported. We strongly encourage Congress to quickly reintroduce and pass these or similar bills into law.

CDW will continue to fight against the abuses of the ambush elections rule via all available avenues.

 

Ambush Elections Fact Sheet

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