Democrats on the National Labor Relations Board (NLRB) and in Congress are attempting to reinstate the 2014 Obama-era “ambush elections” rulemaking, which the Trump-era Board reversed, in order to speed up union representation elections and thereby increase union density and unions’ dues revenue streams. This will be achieved largely at the expense of employees who, due to the rule’s rushed time frames, cannot become fully informed before voting on whether or not they want union representation in the workplace.
On August 25, 2023, the NLRB issued a direct final rule reinstating much of the original ambush elections rule. The new final rule includes ten provisions that drastically shorten the time between a union filing a petition for an election and the holding of the election. Some of the more egregious provisions include: providing only 8 calendar days before the pre-election hearing; requiring employers post and electronically distribute the Notice of Petition for Election only 2 business days after the service of the Notice of Hearing; eliminating the requirement that eligibility and inclusion issues be litigated and resolved before the election; and requiring elections be held at “the earliest date practicable,” eliminating the current 20-business day waiting period.
As dissenting Board member Marvin Kaplan explained, the Board has decided to value “quick elections over fully informed voters.” Under the changes, workers will have little time to become fully informed before their vote, and employers’ due process rights will be violated. Kaplan cautioned, “One is left to wonder how much the voters will actually benefit from the requirements that elections be held as quickly as possible when they find themselves exercising this right without fully understanding the arguments concerning representation and the ways in which their vote may affect them.” The Board also chose not to use the formal notice-and-comment process before making these changes, giving the regulated community no opportunity to weigh in on these critical changes.
Additionally, Democrats in Congress are trying to codify the Board’s 2014 rule into law via the Protecting the Right to Organize (PRO) Act (H.R. 20, S. 567). The PRO Act would make the ambush elections rule the law of the land, infringing on worker and employer rights. The bill was introduced on February 28, 2023. In alignment with the 2014 ambush elections rule, the PRO Act would:
If the ambush elections rule is reinstated through either implementation of the Board’s direct final rule or through passage of the PRO Act, the time between a union filing a petition for election and the NLRB holding that election will be shortened to as few as 14 days. This timeframe effectively limits employers’ ability to communicate with employees and encourages “back door” organizing by unions.
While Democrats are trying to force through these changes, Republicans are working to prevent implementation of the rule. The Trump-era NLRB largely reversed the changes made by the ambush elections rulemaking. In December 2019, the Board issued its Representation Case Procedures Final Rule, which included “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[ted] parties additional time to comply with the various pre-election requirements instituted in 2014.” CDW supported 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. While five provisions of the Final Rule were blocked by the US District Court in May 2020, the court did not 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, 2021, was provided by the NLRB in its press release announcing implementation.
Additionally, in the 115th Congress, Republicans in Congress 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 while halting any efforts to impose the PRO Act or the Board’s new final rule on workers, employers, and the American economy.
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