NLRB Scales Back ‘Ambush Election’ Rule
On December 18, 2019, the National Labor Relations Board’s (Board or NLRB) published a final rule—effective on April 16, 2020—which modifies the 2015 so-called “ambush election” rules. The final rule will lengthen the election process and allow more issues to be resolved before an election is held, to the relief of many employers.
The Board identified the purposes of the rule, among others, to promote orderly litigation, transparency, and fair and accurate voting. The significant changes to the existing election rules include:
- Pre-election hearings will generally be scheduled 14 business days from the Notice of Hearing, rather than eight calendar days.
- There will be at least 20 business days between the Direction of Election and the date of an election. Under the current rules, the Regional Director could schedule an election for the earliest practicable date. After the 2014 amendments went into effect, the median number of days between a petition and an election decreased from 38 to 23 days and has remained at 23 days in FY 2019.
- Employers will have five business days from the service of the Notice of Hearing, as opposed to two under the current rules, to post and distribute election notices. Employers also will have five business days, as opposed to two business days, to furnish the voter list following issuance of the Direction of Election.
- Employers will have eight business days from the hearing notice to file and serve the Statement of Position. Under the current rules, the time period is typically seven calendar days.
- When a union files a representation petition, it also will be required to file and serve a Statement of Position, which is not required under the current rules.
- Disputes concerning unit scope and voter eligibility normally will be litigated at the pre-election hearing and resolved prior to the election. Under the current rules, these issues were often not litigated before an election, allowing employees who may not be eligible to vote, including supervisors, confidential employees, and those whose jobs make inclusion in the unit inappropriate.
- Parties may file post-hearing briefs with the regional director following a representation case hearing. Under the current rules, such briefs are permitted only upon special permission.
- If a party requests review of a regional director’s decision within 10 business days, the NLRB will automatically impound ballots.
- Regional directors will not certify election results while a request for review is pending. Under the current rules, regional directors are required to certify election results despite the pendency or possibility of a request for review.
The NLRB issued this final rule without going through a notice-and-comment rulemaking procedure. Legal challenges are likely.Ballard Spahr's Labor and Employment Group monitors changes in law and policy at the NLRB and routinely assists clients in navigating union election procedures.
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