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NLRB "Ambush Election" Rule Goes Into Effect on April 30, 2012

RULING ON THE MERITS OF CDW'S COURT CHALLENGE EXPECTED BY MAY 15, 2012
- April 2012

The National Labor Relations Board (NLRB) final rule to change the decades-old union representation election procedures will go into effect on April 30, 2012. The “ambush election” rule is being challenged in federal district court in the District of Columbia by the Coalition for a Democratic Workplace (CDW – which NAW helps manage) and the U. S. Chamber of Commerce. On April 28th, the court denied a preliminary motion to delay the NLRB’s implementation of the rule. In the order, Judge James Boasberg stated the court will issue its final ruling on the merits of CDW’s challenge by May 15, 2012. (Chamber of Commerce of the United States, et al. v. National Labor Relations Board, No. 11-2262).

Background

The rule will likely result in union representation elections being held at a faster pace. Businesses should be prepared for the possibility that a union election may be held within as little as 17 days after a petition is filed with the NLRB. The current median is 38 days after a petition is filed.

Equally important, the rule obliterates the employer’s long-standing right to an NLRB pre-election evidentiary hearing to challenge to the appropriateness of the petitioned-for bargaining unit (the group of employees the union would represent), or object to the eligibility of employees to vote. Almost all appeals, including appeals related to election conduct, will be consolidated in one appeal after the election is conducted. A shortened election period will also lessen the information an employer can provide to educate employees on deciding whether to accept or reject union representation.

The rule was published in the December 22, 2011, Federal Register, 76 Fed. Reg. 80138. Additional information is available in the “Guidance Memorandum on Representation Case Procedure Changes,” No. 12-04, issued by the agency’s acting general counsel, available at: http://www.nlrb.gov/publications/general-counsel-memos

NAW will issue a follow-up advisory when Judge Boasberg announces his ruling on CDW’s court challenge.