Ambush Election Rule

On December 12, 2017, the NLRB issued a Request for Information (RFI) on the “ambush” election rule that the Board issued under prior leadership. The RFI seeks 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 issued the ambush rule in December of 2014. The 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 is 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. 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 are also severely undermined by the final rule.

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, 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 to draft a “statement of position” to be presented at that hearing, which sets forth their position on all relevant legal issues, deeming any issues employers fail to raise in the statement as waived, jeopardizing an employer’s 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.

Members of Congress have introduced legislation to nullify the ambush election rule. CDW supports two of these bills – the Workforce Democracy and Fairness Act and the Employee Privacy Protection Act. We strongly encourage Congress to quickly pass these bills into law. In the meantime, we urge the Board to remedy the harm the ambush rule is doing to employers and employees.


Ambush Election Fact Sheet

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