NLRB Considers Proposing Ambush Election Rule…Again

Finally, after a decade, the National Labor Relations Board is fully staffed with five Senate-confirmed members. However, this does not bode well for workers or employers given the Board’s recent pro-union bias.

Already the new members have made it known that they have some unfinished business to attend to. Top on the NLRB’s regulatory to-do list is implementing ambush elections. At least, that is what can be gathered from the American Bar Association’s conference held on November 8, where all five NLRB members were in attendance.

Board member Kent Hirozawa, according to Bloomberg BNA, “confirmed that the NLRB continues to consider changes to its regulations on representation case procedures.”

In 2011, the Board finalized the controversial ambush election rule, despite lacking a proper quorum, which is necessary for the agency to promulgate regulation. Fortunately, the rule was challenged under procedural grounds and the U.S. Chamber of Commerce lawsuit succeeded in blocking implementation of the union election rule.

The nullified NLRB ambush election regulation would have changed union representation elections drastically. The Associated Builders and Contractors summarizes the changes that would occur if the ambush election rule was still in force:

  • Combining pre- and post-election appeals;
  • Truncating pre- and post-hearing procedures; and
  • Limiting the types of issues an employer can raise at a pre-election hearing. (Determining which employees are considered supervisors, and which employees constitute a potential bargaining “unit” are no longer permitted before the election takes place.)

Overall, the purpose of the ambush election rule is to limit the employers ability to communicate with its employees, prior to the union election, concerning the impact of unionization. In addition, to ease the path for unions to organize workplaces.

In a previous post, I noted some of the advantages given to unions as a result of the ambush election rule:

The proposed rule will prohibit employers from making appeals that would stall union elections, even if the grievance is warranted. The adverse effects from this amendment are twofold.


First, the proposal gives incentive to appease Big Labor. As Chairman Pearce stated, “The amendments I propose would not affect those agreed-to elections.” Pretty much the rule encourages employers to sign neutrality agreements. A neutrality agreement is a contract between an employer and union where the employer supports the union’s organizing effort. The Obama administration’s pro-union stance makes appeasement attractive for employers. It is far easier under current labor law to fold to Big Labor than to withstand corporate campaigns, protests, and picketing. The NLRB is promoting neutrality agreements that enable Big Labor coercion and do away with workers’ freedom to choose.


Second, giving Big Labor a foothold into workers’ checkbooks is just wrong. Barring appeals that stall union elections will increase union corruption. Big Labor’s impunity permits fraudulent union representation. Union representation won legally or not empowers unions to start collecting dues. The government appeal process can be lengthy. During the lengthy appeals process Big Labor will sit back collecting union dues from unprotected workers.

However, the 2011 ambush election rule was a watered-down version. Certainly, the new NLRB members will put forth the full-fledged version.

Any new ambush election rule that will be put forth by the Board would contain all the provisions of the repealed regulation. This includes shortening the time between a union petitioning for an election and the vote to just 7-10 days (currently the median time is 38 days), in addition to allowing unions access to employer’s facilities and workers’ contact information before the union has won representation over the workplace.