March 2, 2015

NLRB’s Ambush Election Rule: Good for Unions, Bad for Workers


  • The NLRB’s “ambush election” rule shortens the time between when a union files a petition and when the election happens. The rush is unwarranted, as the median time for a union election is just 38 days. 

  • The compressed time frame limits the ability of employees to hear both sides regarding unionization before an election. 

  • Under the new rule, employers must give substantial personal information to unions about employees without consent or confidentiality safeguards. 


The Senate is expected to consider S.J.Res. 8, a resolution of disapproval of a National Labor Relations Board rule relating to union representation elections. The so-called ambush election rule takes effect this April. It will restrict the opportunity for employees to hear all sides regarding unionization, deny employees critical information about union representation, strip employers of free speech and due process rights, and raise privacy concerns.


“The principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”   – Former NLRB member Brian Hayes, 6/22/2011


S.J.Res. 8 would be considered under the Congressional Review Act, which provides for a non-debatable motion to proceed for consideration by the full Senate. The measure would be subject to up to 10 hours of debate. No amendments are permitted.

Broad New Regulations

The NLRB argues its rule is necessary to modernize union election procedures and to allow for the “expeditious resolution” of representation questions – seemingly at any cost.

The ambush rule implements the following:

  • A union can file a petition for representation with the NLRB regional office with a “showing of interest” document signed by 30 percent of employees. The union then, in its effort to modernize, faxes a copy of the filed petition to the employer at that time. 
  • Within seven days of the union petition, the employer is required to file a “statement of position” (SOP) containing its position regarding the proposed unit, any issues the employer wishes to litigate at a hearing, and a listing of the names of the employees in the proposed unit, their classification, work shift, and work location. The SOP also contains the employer’s position on jurisdictional issues, supervisor and managerial issues, and a listing of any proposed units that it would agree are the most similar to the petitioned unit. The SOP is to propose a date, time, and location for the election. 
  • The employer waives all arguments not raised in the SOP.
  • Within two days of a hearing being scheduled, the employer must provide employee names, personal telephone numbers, personal email addresses, job classifications, shifts, and mailing addresses. The disclosure of personal employee data was previously required within seven days. The new rule also expands the content of the required disclosure. 
  • A hearing, if granted, will be held eight days after the union has filed its petition. Parties may only raise issues included in the SOP, and only if there exists a “question concerning representation.” Issues regarding supervisory employee status – relevant to determine who would be in the bargaining unit and able to vote on unionization – are to be addressed in a post-election proceeding, if warranted based on the outcome of the election.
  • Once a hearing is started, it is to continue on consecutive days until concluded. Motions for continuances will not generally be granted.
  • Under the new procedure, union elections are expected to be held 11 to 22 days after a union petition is filed.

The New Rule Will Harm All Workers

This gift to unions will significantly shorten the time between when a union files a petition and the election date. The rush to hold a union election is unwarranted. Currently, the median time for an election is 38 days after a petition is filed, and 96 percent of all elections occur within 56 days. Under current procedures, unions win approximately 70 percent of elections. 

The compressed timeframe of the new rule limits the ability of employees to hear both sides of the argument regarding unionization. Unions would have as much time as they want to make their case unchallenged before they file a petition. Once they decide to file, the time for the employer to respond and address claims made by the union is dramatically limited under the new rule.

This shortened timeframe could impair the free speech and due process rights given to employers in the National Labor Relations Act. Employers are given just seven days to file their response. This will be particularly challenging for small employers who may not have experience in dealing with unions or in-house legal counsel to help them. The time pressure would make it more likely that these employers would make a costly mistake or unwittingly violate the NLRA. 

Important issues would also be set aside until after an election. These include any challenge to who would be part of a potential bargaining unit, which would only be addressed if the outcome of the election could be disputed. Once the right to bargain is secured through an election, the names of people within a bargaining unit may be left unresolved by the NLRB, possibly resulting in supervisory employees who should be outside of the bargaining unit left as dues paying members of the union. Confusion and liability results if an employer believes a supervisor is speaking for them, and the conduct of these employees could jeopardize the election results. 

The new process also limits employers’ ability to challenge pre-election rulings by NLRB regional directors. This in turn increases the authority of regional directors, while decreasing the authority and oversight of Senate-confirmed NLRB members. 

Privacy Concerns Abound

Under the new rule, employers would be required to give unions substantial personal information about employees who might vote in the election. Currently the union gets only the employee’s name and home address. Under the new rules, employees do not have to give their consent for the information to be released, and they have no way to opt out of giving it. The rule also provides no safeguards for confidentiality of personal information, nor are safeguards stipulated for the safe disposal of this private information after the conclusion of an election.

The Wall Street Journal, in a December 12, 2014, editorial, noted that this rule would give “unions unfettered access to employees it hopes to persuade, using information that workers provide to their employer.” Concerns have been raised for the privacy and safety of workers and their families, as additional personal information would be provided to unions.

Remedies under the NLRA for inappropriate use of personal employee information are uncertain. Enforcement action is limited to the investigation of unfair labor practices. These are defined as an employer interfering with employee rights to organize, form, join, or assist a labor organization; and restraining or coercing employees by unions as they exercise their right to refrain from concerted activity.

The NLRB Tries Again

In 2011, the NLRB finalized a nearly identical rule. This was struck down by a U.S. District Court in 2012, because a quorum of the board did not participate in the rulemaking. The NLRB eventually withdrew that rule. Prior to the court striking down the original rule, the Senate considered S.J.Res. 36, a measure of disapproval of the rule. That resolution failed by a vote of 54 to 45. 

On December 15, 2014, the NLRB issued its new rule on ambush elections. That rule is scheduled to go into effect on April 14. 

Issue Tag: Labor