In 2014, the National Labor Relations Board adopted regulations that considerably shortened the time period between certification of a petition for union recognition and the election on this question. In addition, the rules curtailed grounds employers had to challenge the petition pre-election, often meaning their only option was to try to undo the results of the vote. Many employers viewed these changes as intended to inhibit their ability to react to and oppose a union organizing effort.

On December 13, the NLRB issued changes to the 2014 regulations, providing employers with more options in terms of responding to “ambush” elections. The rules now give employers the ability to challenge the composition of the proposed bargaining unit before the election occurs. They also extend deadlines that parties challenging pre-election procedural issues have when litigating claims before the board.

The NLRB did not issue a notice of proposed rulemaking on the changes or release proposed rules. The board noted that these changes are procedural in nature and therefore do not require a formal rulemaking process. Labor advocates may file legal challenges as to the process used by the board to accomplish these revisions.