NLRB Issues Final Ambush Elections Rule

On Aug. 24, the National Labor Relations Board (NLRB) issued a final regulation governing the timeframe for labor union elections and expanding the NLRB’s ability to impose unions on employees without a secret ballot election. The rule, also known as the “ambush elections rule,” reverses changes made by the Trump administration, which in turn had reversed the Obama-era ambush election rule.

One of the key provisions of the new rule is a requirement that elections be held before related litigation is resolved. Under the Trump-era regulation, the NLRB was required to rule on issues such as workers’ eligibility to vote and alleged unlawful conduct by employers before holding an election.

As the NLRB explained, the new rule “will meaningfully reduce the time it takes to get from petition to election in contested elections and will expedite the resolution of any post-election litigation.” Changes include:

• Allowing pre-election hearings to begin sooner;
• Ensuring election information is disseminated to employees more quickly; and
• Making pre- and post-election hearings more efficient.

The Coalition for a Democratic Workplace (CDW), which MSCI is a member of, said the new version of the ambush elections rule reverses a half-century of NLRB precedent and is at odds with long-standing Supreme Court rulings. The CDW also noted the NLRB made this major policy change without soliciting input from the public or allowing amicus briefs regarding it.

“The Board’s decision to force unions on employees without an election is contrary to the law and the fundamentals of workplace democracy,” said CDW Chair Kristen Swearingen. “Employees deserve the right to decide whether or not they want union representation through a secret ballot election. The Board should be protecting this right and doing everything in its power to promote employee participation in elections — not forcing unions on employees based on unreliable authorization cards.”

Read CDW’s full statement here. The new rule will take effect Dec. 26, 2023. Find the full final rule here. The NLRB also has provided a fact sheet that is here.