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Public Comment Period On ‘Ambush Election Rule' Closes With a Fury


If readers recall, the National Labor Relations Board (‘NLRB’) had previously implemented what has become known as the ‘ambush election rule’.  This rule drastically shortened the period when a union election can occur, from a standard 38 days to as little as 10 or 11 days.  Employers and pro business groups cried foul after the rule went into effect in April 2015 and argued the rule improperly prohibited employers from educating their employees as to the negatives of unionization prior to an election occurring.  With such a tight window between when a petition is filed and when the election can occur as to whether to unionize, employers pointed out that much of their time would be spent on legal strategy rather than attempting to present counter arguments to what a union told employees about unionization.

When the NLRB assumed a 3 - 2 majority of Republican appointed Board members, attention turned to whether the ‘ambush election rule’ would be rescinded, amended, or remain in place.  Before making any decision, the NLRB opened up a public comment period to solicit comments from any party on what to do with the rule.

The public comment period closed last Wednesday and there was a flurry of activity toward the tail end of the period.  (Readers might recall the uproar earlier this month after it became known that U-Haul took steps to help its employees submit comments in opposition to the rule, including providing wording for employees to use in their letters).  Two members of Congress (Republican Representative Virginia Foxx and Republican Senator Lamar Alexander) submitted a letter urging the NLRB to rescind the rule in its entirety.  The National Retail Federation, a pro employer group, issued a letter to the NLRB and argued the rule ‘disregarded basic notions of due process’ and ‘impacted the ability to properly determine the appropriateness of the bargaining unit’.  The National Grocers Association also submitted a similar letter last Wednesday and urged the NLRB to rescind the rule on the grounds that the rule prohibits a full and fair hearing on unionization before an election occurs.  As well, NLRB General Counsel Peter Robb suggested the Board would be better served modifying the rule but not rescinding it entirely.

Not to be outdone, General Counsel for the Laborers’ International Union of North America submitted a letter to the NLRB last Tuesday and urged the Board to uphold rhe rule, based in part on the suggestion that it was unnecessary to establish a minimum period before an election could occur.

It is expected the NLRB will make a decision as to the future of the ‘ambush election rule’ sometime later this year.  I doubt the rule will remain in place as it is currently written.  I think it is more likely the NLRB will amend portions of it or simply rescind it in its entirety.  

Stay tuned.

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