NFIB Urges NLRB to Rescind its Pro-Union Ambush Election Rule

Date: January 18, 2018

In step with other deregulatory measures we’ve seen over the past year, the National Labor Relations Board has reversed course on a handful of controversial Obama era rules. And in the latest sign that regulatory relief may be on the way, the Board is currently soliciting comments on whether it should modify or rescind an especially problematic rule governing union election procedures. We dubbed this the “Ambush Election Rule” because it radically sped-up the timeframe for a union election and because it gave union organizers an unfair advantage in the process.

Because the Ambush Election Rule stacks the deck in favor of union agitators while tying the hands of small business owners, the National Federation of Independent Business had no choice but to pursue relief in court. But, unfortunately, the courts sided with the government—deferring to the Board’s interpretation of relevant statutory provisions in the National Labor Relations Act, even though it was not the best interpretation available. As we’ve explained previously, this sort of deference is a real problem—and probably the greatest contributing factor to the growth in the regulatory state over the past thirty years.

But there is reason for optimism now that the Board has signaled an interest in revisiting the Ambush Election Rule. Of course, we must wait (along with everyone else) to find out what the Board will do next. In any event, NFIB has submitted comments urging the Board to keep small business concerns in mind, especially given that small businesses lack in-house legal counsel and are usually unfamiliar with union election procedures:

“NLRB should give high priority to revision of the Representation-Case Procedures to take account of the needs of small business. Among other things, small businesses should not face … short deadlines for action, legal consequences without prior notice and an opportunity to be heard, burdensome requirements to produce information, intrusions onto their property or into the privacy of their employees in relation to the employees’ exercise of their right to refrain from unionizing under section 7 of the NLRA… NLRB should establish [rules] … for cases involving small businesses [that] would be substantially less costly, intrusive, and burdensome for an employer…”

Relatedly, our readers may be interested in our Guide to Managing Unionization Efforts.

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