United States: NLRB’s New "Ambush Election Rules" Go Into Effect

The National Labor Relations Board's (NLRB's) "ambush election rules," which make sweeping changes to the procedures applicable in union representation cases, took effect on April 14, 2015. Despite two pending lawsuits currently challenging these new rules as contrary to the National Labor Relations Act's (NLRA's) plain language and legislative history, the NLRB's Office of General Counsel recently released a 36-page, single-spaced "guidance memorandum" regarding its "streamlined" procedures. Employers need to adjust to this new reality and react accordingly.

The New Election Rules

The NLRB's new "ambush election rules" make significant changes to longstanding rules governing union elections. In every instance, the changes make it more difficult for employers to communicate with their employees and, therefore, ensure that employees can make an informed choice when deciding whether to vote for or against unionization.

The new rules specifically make the following important changes:

Length of Time Between Petition and Election Date

  • Eliminate the 25-day period between the date an election is ordered and the date the election is held. Now elections will be held "as soon as practical." In reality, this change will reduce the time between the filing of a petition and the election date from an average of 42 days to between 10 and 24 days.

Filing and Service Requirements

  • Permit parties to electronically file election petitions and case documents, and permit the NLRB regional offices to deliver notices and documents electronically rather than by mail.

Information Received by the Parties and Prospective Voters

  • Require the petitioner to serve (1) a copy of the petition, (2) a description of the new procedures, and (3) a Statement of Position form.

Statement of Position

  • Require the employer, by noon of the day before the pre-election hearing, to file a Statement of Position detailing any challenges the employer has to the proposed unit, including specifically identifying any classifications, locations or employee groupings the employer contends should be added to or excluded from the proposed unit, and the bases for such contentions.
  • Require the employer to include with its Statement of Position an alphabetized list of the full names, work locations, shifts and job classifications of all individuals in the proposed unit.
  • Deem any arguments not raised in the Statement of Position to be waived unless the employer can show good cause for the omission.

Timing of the Pre-Election Hearing

  • Require a pre-election hearing to begin eight days after a hearing notice is served, except in cases presenting "unusually complex issues" (which the NLRB has not defined).

Substance of the Pre-Election Hearing

  • Do not provide employers the right to have appeals of the NLRB regional director's voter eligibility and inclusion determinations heard by the NLRB until after the election.
  • End the parties' right to file a brief within seven days of the closing of the pre-election hearing and, instead, allow such briefing only if the regional director determines it is necessary.

Excelsior List

  • Require, within two days of the approval of an election agreement or direction of election, that, in addition to the home addresses previously required, an employer must provide to the union petitioner a list of the bargaining unit employees' home and cellular phone numbers and personal email addresses.

Election Notice Procedures

  • Require that employers distribute election notices via email in addition to posting the notices as previously required.

Post-Election Procedures

  • Require that objections to an election be filed within seven days of the tally of ballots and be accompanied by an offer of proof, identifying witnesses and summarizing their anticipated testimony.
  • Provide the NLRB discretion to determine whether to review aspects of post-election decisions made by the regional director.

The Rules Take Effect Despite Legal Challenges

Due to the negative effects on employers' ability to communicate with their employees and ensure that employees can make an informed decision in any union election, the new rules have been roundly criticized. Two groups currently have pending federal lawsuits challenging the rules, one filed earlier this year in the U.S. District Court for the District of Columbia (United States of America, et al. v. NLRB, Case No. 1:15-cv-00009), and one filed in the U.S. District Court for the Western District of Texas (Associated Builders and Contractors of Texas, Inc., et al. v. NLRB, Case No. 1:15-cv-00026). The Associated Builders' lawsuit, for example, contends that the "purpose of [the new rule] is to achieve the impermissible pro-union objective of accelerating the election process to such an extent that employers will be unable to respond effectively to union organizing campaigns."

Despite ongoing legal challenges, the NLRB has not been enjoined from implementing and enforcing the new rules. The NLRB Office of General Counsel's memorandum issued April 6, 2015 confirms that, absent an intervening court decision, the NLRB is implementing and enforcing the changed rules detailed above effective April 14, 2015. Consequently, unless and until a court rules to the contrary, employers must be prepared to abide by the new rules.

The NLRB's Guidance Memorandum, Memo Number GC-15-06, is available at: www.nlrb.gov/reports-guidance/general-counsel-memos

Employer Response to the New Rules

The significant changes entailed by the new rules severely hamper employers' ability to effectively respond to union petitions. At a minimum, employers should use the rules' implementation as the impetus to conduct a strategic review of their union avoidance preparation. Among other things, employers may want to:

  • Review supervisor designations and the relevant job duties of supervisor positions to ensure that employees occupying those positions unquestionably are supervisors under the NLRA.
  • Review their organization structure to provide the best configuration to avoid unfavorable "micro-units."
  • Conduct appropriate education efforts with both supervisors and hourly employees before a union petition to ensure that employees are appropriately educated and can make an informed decision about potential unionization, even with the shortened election period.
  • Consider and prepare potential legal arguments and pleadings so they are ready in the event a petition is filed.
  • Consider numerous other steps, many of which will be dependent on facts and issues specific to a particular industry and each particular employer.

Further, employers should continue to monitor developments from the NLRB closely with regard to the new election rules. We will alert you if any court decision enjoins or otherwise affects the rules in their current form. In the meantime, please reach out to your McGuireWoods contact or a member of the McGuireWoods traditional labor team for any questions you may have or assistance needed regarding the new rules or strategically reacting to the rules in an effective manner.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Sheppard Mullin Richter & Hampton
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Sheppard Mullin Richter & Hampton
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions