Federal Court Upholds NLRB’s Ambush Election Rule

Late last week, the Fifth Circuit Court of Appeals upheld the National Labor Relations Board’s (NLRB) rule to drastically speed up union elections. The NLRB’s “ambush election” rule allows employees to take a vote on union representation as quickly as 11 days after a union petition has been filed.

Prior to the NLRB’s ambush election rule, employers had a median of 38 days before an election to offer counter-arguments and persuade his/her employees not to join a union. With the ambush election rule, union officials can quickly sweep into a small business, organize the workers without the business owner knowing, and form a union. The ambush election rule guarantees employers no more than 10 days to stop this from happening.

The challengers in the lawsuit, the Associated Builders and Contractors of Texas and the National Federation of Independent Business (NFIB), argued that the NLRB’s rule undermines the rights of employers and violates privacy laws.

Executive director Karen Harned of NFIB’s Small Business Legal Center stated: “Small businesses everywhere are extremely disappointed by the decision, which puts employers at a severe disadvantage. The rule essentially makes it impossible for small businesses to respond to unionization campaigns. It also hurts employees by compromising their privacy, as the rule requires them to hand-over sensitive information.”

Legislation to address this issue is currently pending in both chambers of Congress. The Employee Rights Act (H.R. 3222 and S. 1874), introduced by Rep. Tim Walberg (R-MI) and Sen. Tim Scott (R-SC), would give employees at least 40 days to hear from employers before voting in a union election.

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