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Federal Judge Strikes Down Rule on Ambush Elections

A federal district court judge has struck down a rule that was set to become effective on June 1, 2020 that would have outlawed so-called “ambush elections” by labor organizers. The rule, put forward by the National Labor Relations Board (NLRB), would have imposed significant procedural restrictions on when and how union elections could be called. However, the judge struck down the rule, saying that it was passed without satisfying the “notice and comment” requirements of the Administrative Procedure Act.

The new rule in question is meant to counter the practice of ambush elections, the term used for union elections called with less than two weeks between the initial union petition and the election. Employers complained about these ambush elections, which began because of another rule change back in 2015, because they rarely had time to respond to the union petition before the election occurred. Had it come into effect, the new rule would have increased the amount of time required to pass between a union petition and the election, as well as imposing other procedural requirements, giving employers more of a chance to campaign against the union election.

Ironically enough, this new rule intending to outlaw ambush elections was struck down because it was probably pushed through too quickly. The NLRB was so fast in pushing the rule, the federal court ruled, that there had not been sufficient time to give the public notice and allow them to comment on the new rule, which violated the Administrative Procedure Act. The court did not rule on the merits of the rule itself (although some parts of the rule will be ruled on later this year), instead sending it back so that it could be promulgated in accordance with proper administrative procedure.

If you are looking into unionizing, or you already have a union and are in a dispute with your employer, give the Law Offices of Steven Sack a call. Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer who has considerable experience in handling the many aspects of labor and employment law. To schedule a consultation with New York City employment lawyer Steven Mitchell Sack, call (917) 371-8000.

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