By: Eric Sell
As one of the worst pandemics in modern history has many sectors of the global economy at a standstill, Big Labor’s ever-vibrant fight against the Trump administration is still alive and well.
On March 6, 2020, the American Federation of Labor-Congress of Industrial Organizations (“AFL-CIO”), one of the nation’s largest labor union associations, challenged a new rule adopted by the National Labor Relations Board (“NLRB” or “Board”) that would provide employers more time to prepare for unionization votes following a petition by employees to unionize. Known colloquially (by its opponents) as the “ambush elections” rule, 29 C.F.R. 102 et seq. governs how employees petition for an election to form a union. Unsurprisingly, the rule has been a source of significant controversy over the past decade.
The rule is a flashpoint among competing interests because it governs the process by which unions boost their membership rolls. And with union memberships merely a fraction of what they were a half century ago, organized labor isn’t shy about seeking every advantage possible to add due-paying members to their political army.
Critics of the prior rule claim that in December 2015, the Obama administration’s NLRB modified the union elections process to give unions an unfair advantage over employers. The typical procedure for employees to unionize under the National Labor Relations Act (“NLRA”) involves filing a petition of intent with the NLRB, holding a pre-election hearing with the NLRB regional officer, and holding the election within about a month after the petition to unionize was filed. But the timeline for this process was significantly condensed under the Obama administration.
Changes to the process made in the Obama-era “ambush elections” rule included:
- Requiring employers to provide contact information for all of its eligible employees to the union, thus giving protentional unions the ability to track down every employee at a given company and lobby them to support unionization.
- Requiring a pre-election hearing within seven days of a petition for an election being filed. Prior to the Obama-era rule, pre-election hearings usually took place several weeks after the filing of a petition, allowing employers more time to find appropriate counsel and make their pitch for why a union is unnecessary.
- Requiring employers to present a “statement of position” at the pre-election hearing, outlining all relevant legal issues that the employer wants to raise.
On December 19, 2019, the Trump-appointed NLRB members reversed course and adopted revisions to the ambush elections rule to provide employers more opportunities to respond to election petitions and more time to prepare for pre-election hearings. Notably, this rule was adopted without a notice and comment process. The NLRB argues the rule changes are merely “procedural,” rather than substantive, and therefore a notice and comment rulemaking process was unnecessary under the Administrative Procedure Act (“APA”).
The primary revisions to the “ambush elections” rule essentially extended the timeline for the election process. The central criticism of the Obama-era rule was the condensed timeframe from which a petition for election is filed and when the election takes place, hence the term “ambush elections.” By lengthening the timeline for when an election occurs, employers have more time to maintain the status quo by campaigning against unionization.
Two of the primary revisions to the elections rule made by the Trump NLRB include:
- Pre-election hearings are to be held no sooner than 14 days after the filing of a petition to unionize.
- The petitioning party is now required to serve a statement of position on the other party prior to the pre-election hearing.
The AFL-CIO’s complaint includes four claims primarily challenging the process the Board used to adopt the rule.
In addition to claiming that “[t]he Board did not comply with the procedural requirements of the APA,” the complaint also claims that the “Board’s action was arbitrary and capricious as a whole under the APA,” and that “specific parts of the . . . rule are arbitrary and capricious under the APA.” The complaint also claims that the “rule is inconsistent with the National Labor Relations Act (“NLRA”), and thus violates the APA.”
It’s unlikely that this suit will settle the controversy over ambush elections. The political tennis match surrounding this rule started more than a decade ago and probably won’t end with this administration. Given the impending economic challenges stemming from the coronavirus pandemic, the battle between labor and management will likely become more heated over the next several years. Sadly, while Big Labor fights for every advantage possible to increase membership numbers, the labor pool to draw from might be a lot shallower by the end of the summer.
Let’s just hope that by this time next year a fight
over union elections is still on our list of concerns.
 Chis Opfer, AFL-CIO Sues Trump Administration over Union Elections Rule, Bloomberg Law News (March 6, 2020),https://www.bloomberglaw.com/document/XDN90BKC000000?bna_news_filter=daily-labor-report&jcsearch=BNA%252000000170b331d2dca9f4fbfbdb050000#jcite; See also AFL-CIO Complaint (No. 20-cv-00675).
 See 84 Fed. Reg. 69,524 (Dec. 18, 2019).
 See Quoctrung Bui, 50 Years of Declining Union Membership in One Chart, NPR (Feb. 23, 2015), https://www.npr.org/sections/money/2015/02/23/385843576/50-years-of-shrinking-union-membership-in-one-map.
 See Eliminating the Ambush Elections Rule, Coalition for a Democratic Work Place (2019), https://myprivateballot.com/wp-content/uploads/2019/04/Ambush-Fact-Sheet-4-19.pdf (Asserting that the Obama-era rule effectively limits employers’ ability to communicate with employees prior toa representation election and encourages “back door” organizing.).
 29 U.S.C. § 151–169.
 See 79 Fed. Reg. 74,309 (Dec. 15, 2014).
 See Eliminating the Ambush Elections Rule, supra note 4.
 84 Fed. Reg. 69,524 (Dec. 18, 2019).
 See 84 Fed. Reg. 69,528 (Dec. 18, 2019) (“[T]he final rule is procedural as defined in 5 U.S.C. 553(b)(A), and is therefore exempt from notice and comment.”).
 See 84 Fed. Reg. 69,524 (Dec. 18, 2019)(“[T]hese amendments modify them to permit parties additional time to comply with various pre-election requirements instituted in 2015 . . . .”).
 Eliminating the Ambush Elections Rule, supra note 4.
 84 Fed. Reg. 69,525 (Dec. 18, 2019).
 AFL-CIO Complaint (No. 20-cv-00675) at 1.