NLRB Reissues ‘Ambush Election’ Rules

by Ballard Spahr LLP

The National Labor Relations Board (NLRB) has issued proposed rules and regulations which, if adopted, will dramatically change the process for representation case petitions and pre-election procedures. Referred to by critics as the “ambush election rules,” the regulations will, among other things, reduce the amount of time between the filing of a representation petition and a union election, and delay most legal challenges until after the election.

These changes will significantly affect the pace and conduct of union elections. Consequently, all employers under the NLRB’s jurisdiction should consider submitting comments in this latest round of proposed rulemaking.

According to the NLRB, the newly proposed rules are “identical” to those the NLRB originally promulgated in June 2011. A modified version of those rules was finalized in December 2011, but was later withdrawn amid controversy over the NLRB’s authority to issue the rules. As we noted might happen in a previous alert, now that the NLRB is fully constituted, it has reissued its 2011 proposed rules in the form of a Notice of Proposed Rulemaking (NPRM). According to the NLRB, these rules are “aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay.”

Significant changes included in the proposed rules would:

  • Amend the NLRB’s existing regulations to state that pre-election hearings are held to determine whether a “question concerning representation” exists—the threshold issue in a petition filing—and not to determine collateral issues such as voter eligibility or inclusion in an appropriate bargaining unit which “ordinarily” can be resolved after an election.
  • Give NLRB hearing officers express authority to limit the evidence presented in pre-election hearings to genuine issues of fact material to the existence of a question concerning representation and to exclude all other evidence.
  • Give hearing officers discretion over whether, and when, post-hearing briefs may be filed, as well as what issues those briefs may address.
  • Eliminate pre-election requests for review to the NLRB. Instead, all pre-election rulings would be consolidated and only be subject to review post-election. A party could file a request for review, however, if the regional director dismisses a petition.
  • Make NLRB review of election objections and challenges in stipulated and directed election cases discretionary.
  • Allow for electronic filing and transmission of election petitions and other documents.
  • Include telephone numbers and email addresses (where available) in voter lists (Excelsior lists) to enable parties to the election to be able to communicate with voters using modern technology.
  • Shorten the time for production of Excelsior lists from seven to two days, absent extraordinary circumstances specified in the direction of election.
  • Require that pre-election hearings should be held within seven days (five business days) after the Notice of Representation Hearing is issued. (The notice generally is issued on the date the petition seeking an election is filed.)
  • Preclude requests for special permission to appeal certain rulings of the hearing officer or the regional director, “except in extraordinary circumstances.”

Comments on the NPRM are due on or before April 7, 2014.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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