NLRB Rolls Back Ambush Election Rules

Last week, the National Labor Relations Board (NLRB or Board) announced changes to the procedural rules governing union elections. You may remember that in 2014, the Board adopted controversial election procedures that considerably shortened the time period for an election. These “ambush election rules” gave unions an advantage by speeding up the union election process, giving employers less time to effectively respond and employees less time to fairly assess their options. Fortunately, the Board has now amended these rules in several important ways.

The most significant change is that disputes involving unit scope and voter eligibility (including supervisory status) can once again be litigated at the pre-election hearing. The ambush election rules had forced the parties to wait to litigate these critical issues until after the election, which meant that the parties were not certain who was in the unit and who was a supervisor. The Board has also given employers more time to submit voter eligibility lists (5 days instead of 2 days), given the parties more time to prepare for a pre-election hearing (14 days instead of 8), given the employer more time to post notices, and extended the time period in which the election must be held (no earlier than 20 business days from the direction of election).

While the new rules do not return employers to the pre-2014 procedures, they offer welcome relief from unreasonable deadlines and should provide all parties with better clarity as to the unit at issue. The only bad news here is that the rules will not take effect until April 16, 2020.

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