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NLRB “Ambush Election” Rules Put Employers at a Disadvantage in Union Election Process

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Michael R. Blum and Frank T. Mamat
Foster Swift Employment, Labor & Benefits E-News
December 16, 2014

On December 12, 2014, the National Labor Relations Board (NLRB) implemented the highly anticipated and controversial “ambush election” rules that will significantly speed up the union election process. The new rules, adopted by a divided NLRB and set to take effect on April 14, 2015, will allow elections to occur just 10 to 21 days after a petition has been filed. The new rules alter the union election process landscape in many ways, including the following significant changes:

  • Expedited Elections. Union elections will now be held in a range from 10 to 21 days after a petition is filed. This significantly shortens the prior target of holding an election within 42 days from the filing of the petition. This presents many challenges for employers, including the ability to effectively communicate with employees prior to an election.
  • Litigation of Eligibility and Bargaining Unit Issues. Generally, only issues necessary to determine whether an election should be conducted will be litigated prior to the election. Litigation over voter eligibility and bargaining unit inclusion/exclusion issues may be postponed until after the election. NLRB regional directors are given broad discretion to deem litigation unnecessary until after the election under the new rules.
  • Pre-election Hearings. To the extent pre-election litigation is permitted, the new rules reduce the number of pre-election hearings that may be held and provide that any such hearing shall start just eight calendar days after the date the petition is filed. Employer position statements must be filed one business day before the hearing is set to start and address issues, including (i) any exclusions from the bargaining unit; (ii) the appropriateness of the unit; (iii) the proposed date, time, and place of the election; and (iv) any other issues the employer seeks to raise at the hearing.
  • Employee Information. Employers must provide union organizers with an electronic file within two business days of the election of all available names, addresses, personal email addresses, phone numbers, work location, shift and job of employees eligible to vote. This new rule raises concerns about the privacy of employee information and the burden on employers to furnish the information.
  • Electronic Notice. Employers must (if they customarily communicate with employees electronically) provide for electronic filing and transmission of election petitions and other documents, in addition to posting paper notices.
  • Appeals. All appeals related to an election will be consolidated, so any appeals of pre-election procedures will be postponed until after the election. The NLRB also has broad discretion to deny review of a Regional Director’s pre-election and post-election rulings.

These new rules are intended to, and will, help unions in organizing efforts.  The speed with which a union can go from petition to election poses particular challenges for employers. However, there are a few things employers can do to prepare for an “Ambush Election”:

  • Be ready in advance of a petition being filed with appropriate information and campaign material.
  • Train supervisors on how to detect and react to a union campaign.
  • Develop internal strategies and procedures, as well as designate a response team, for responding to petitions.
  • Assess the vulnerability of particular locations for unionization activity.

Pro-business advocates have raised many concerns about the final rules, including that its scope is unnecessary, violates worker privacy and poses an unreasonable obstacle to informed choices regarding unionization. The NLRB, however, stated in its announcement of the ruling that the move is an effort “to modernize and streamline the process.”

The “Ambush Election” rules were previously implemented by the NLRB but withdrawn after federal courts concluded they were implemented without a quorum of the NLRB's members. After the rules were first passed, many trade associations and interested parties successfully filed legal actions to prohibit the implementation of the rule. This latest development will likely revive similar legal challenges.

Foster Swift’s labor lawyers are deeply familiar with the new NLRB rules and stand ready to assist clients in evaluating their impact, and implementing necessary changes. These rules have the potential to impact and shape your workforce and workplace, so please contact a member of our team with any questions you may have.