HR Legalist

NLRB Announces Rollbacks to 2014 “Ambush-Election” Rule

Today, the National Labor Relations Board (“NLRB”) publicized a pending restructuring of Obama-era regulations governing the timelines for union elections. The prior regulations (finalized in December 2014 and summarized by HR Legalist) are sometimes referred to as the “Ambush Election Rules” because of their truncated timelines for hearings, notices and submissions—posing challenges for employers facing union campaigns and organizing. While not a complete overhaul of the Obama-era rules, the new rules made public today would restructure certain key provisions that expedited the election process, and are expected to take effect approximately 120 days from Wednesday, December 18, 2019.

Some of the revisions are as follows:

• The Pre-Election Hearing will generally be scheduled fourteen (14) business days from the Notice of Hearing. Under the prior rule, Pre-Election Hearings were scheduled eight (8) calendar days from the Notice.
• The Notice of Petition for Election will be posted within five (5) business days after service of the Notice of Hearing. The prior rule required posting within two (2) business days.
• The Non-Petitioning party (typically the employer) will now have eight (8) business days after the Notice of Hearing to file its Statement of Position, as opposed to seven (7) calendar days under the old rules. 
• Elections will not be scheduled before the twentieth (20th) business day after the Direction of Election (if there is an NLRB hearing), which will substantially increase the time between the date the Petition for Election is filed, and the date on which the election is actually held.

These expansions will allow employers more time to educate their employees on a union that files a petition for an election, and why they should consider refraining from voting for a union and giving away their individual bargaining power to a third party.

Most employers will see this change as a step in the right direction, as many of those disaffected by the 2014 regulations believe they will stand a better chance at persuading their workers not to unionize during a pre-vote campaign when they have an extended timetable to do so. However, it is important to note that while the prior “Ambush” rules shortened the time between election petitions and voting, the overall “win rate” for unions hasn’t changed significantly.

Employers facing potential union campaigns should take note of this change, which is the latest in a series of Trump-era NLRB rulings that have steered labor law in a generally more employer-friendly direction (including a recent NLRB ruling approving a settlement of a series of high-profile charges against McDonald’s). As always, HR Legalist will continue to monitor the ever-shifting landscape of the NLRB and labor law, and its implications for employers.

These changes will take effect in six (6) months on May 18, 2020.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.