On Feb.6, the National Labor Relations Board (NLRB) reissued a controversial proposal, commonly referred to as the “ambush”election rule, that would reduce the amount of time between when a union files a representation petition and an election takes place from the current average of 38 days to as few as 10 days. The reissued proposal is identical to the original version the NLRB issued in June 2011.

In mid-2011, Associated Builders and Contractors (ABC) and the ABC-led Coalition for a Democratic Workplace (CDW) filed comments in opposition to the rule, as well as testified at a public stakeholder meeting.  Despite the business community’s strong objections to the rule, the NLRB issued a truncated version of the proposal as a final rule in December 2011.

Although the final rule omitted several contentious provisions from the original proposal, it remained highly objectionable to the business community. In February 2012, the CDW and the U.S. Chamber of Commerce moved forward with a legal challenge to overturn the rule on the grounds it exceeded the NLRB’s statutory authority and violated the First and Fifth amendments, which guarantee the right to free speech and due process.

In May 2012, the U.S.District Court for the District of Columbia overturned the ambush election rule because it was adopted without the statutorily required quorum of NLRB members—a decision the board later appealed. While the appeal was pending, new issues arose about the validity of the recess appointments in Noel Canning v. NLRB, which was a CDW-backed legal challenge regarding President Obama’s 2012 appointments of three members to the NLRB. Although the D.C. Circuit held the NLRB’s appeal in abeyance pending the outcome of Noel Canning, the U.S. Senate confirmation of five board members in the summer of 2013 cleared the path for a new ambush election rule to be issued.

In December 2013, the NLRB abandoned its appeal in the ambush election case and officially withdrew the rule in January. With a fully confirmed board, it moved forward with reissuing the contentious rule on Feb. 6. The board allotted a 60-day comment period for the public and plans to hold public hearings on the proposal.  

The proposal changes the union representation election process by drastically shortening election time frames and includes several other objectionable provisions. Some of the changes include:
  • requiring that any pre-election hearings begin within seven days of a hearing notice being served and that a post-election hearing be held within 14 days of the final tally of votes in the election;
  • forcing employers to identify and state any legal grounds for questioning the union petition almost immediately, or else they will not be entitled to a hearing;
  • deferring until after the election litigation for eligibility issues that involve less than 20 percent of the bargaining unit;
  • eliminating pre-election appeals of NLRB regional director rulings and requiring that all appeals be included in a single post-election request;
  • reducing the amount of time an employer is allotted to provide a list of eligible voters from seven days to two days;
  • requiring the voter list to be submitted  electronically and include emails and phone numbers for the first time; and
  • requiring (with some exceptions) all parties and the NLRB to transmit election petitions and election notices electronically.
If finalized, the reissued ambush election proposal would work hand-in-glove with the U.S. Department of Labor’s (DOL) proposed persuader rule. The persuader rule, which is expected to be released this year,drastically narrows longstanding reporting exemptions for employers and labor relations experts and redefines “advice.” The rule would significantly expand the circumstances in which third-party advice, which employers use to educate their employees about collective bargaining, would have to be reported by both the employer and the third party (including attorneys and association staff). As the proposal is currently written, the disclosure requirements also include money paid for these services.

If finalized, the ambush election and persuader proposals would have a chilling effect on construction employers. Ultimately, employees would be deprived of their right to obtain balanced and informed input from both sides as they decide whether to be represented by a union.

Lauren Williams is manager of labor and employment policy for Associated Builders and Contractors. For more information, email lewilliams@abc.org.