ABC New Hampshire & Vermont News

"Ambush Election" Rule Overruled

In our May ACTION Newsletter, ABC reported that a controversial final rule issued by the National Labor Relations Board (NLRB) in December 2011 that overhauls procedures for union representation elections became effective on April 30. Under the rule, commonly known as the “ambush” elections rule, the amount of time between when a union files a representation petition and an election takes place is reduced from the current average of around 40 days to as few as 17 to 20 days. The NLRB achieved this drastic reduction in time primarily by: combining pre- and post-election appeals; truncating pre- and post-hearing procedures; and limiting the types of issues an employer can raise at a pre-election hearing. However, On May 14th, the US District Court for the District of Columbia held that only, "Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough."  The court went on to state that without at least three members participating, the Board lacked the authority to issue the rule. As it stands currently, the Board may not conduct an election using the procedures set forth in the rule.  ABC expects, however, the Board will appeal.  The earliest a court would rule on the appeal would be in October or November. The Board also may attempt to reissue the rule.  This would invite an additional legal challenge; particularly given three of the current Board members are unlawful recess appointments.

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