The “Ambush Election” rules promulgated by the National Labor Relations Board (NLRB) have withstood a congressional challenge and will take effect this week as originally planned. The NLRB adopted these changes in December. However, Congress sought to overturn them pursuant to the Congressional Review Act, which permits congress to pass resolutions to stop regulatory action. On March 31, President Obama vetoed the congressional joint resolution, meaning the rules will go into effect as scheduled.
The rules drastically speed up union elections and will make it harder for employers to respond to organizing attempts adequately and thoroughly. The rules limit pre-election litigation of voter eligibility and reduce the time between the certification of an election and the election itself. They also require employers to submit a list of employee phone numbers and email addresses to union organizers. The NLRB stated that the rules are required to modernize and streamline union representation elections.
In vetoing the congressional resolution, President Obama stated that the rules constituted “modest but overdue reforms to simplify and streamline private sector union elections.” He added that “one of the freedoms of folks here in the United States is that if they choose to join a union, they should be able to do so. And we shouldn’t be making it impossible for that to happen.” Under the previous rules, unions won approximately 70 percent of scheduled elections. That number is expected to increase with shorter time frames and less opportunity for employers to challenge issues beforehand.
Employers should be on the lookout for increased union activity, such as hand billing, union-based fliers, or changes in the frequency or subject matter of employee complaints. MSEC labor attorneys are available to assist with questions on the new rules and union avoidance training.