Final ‘Ambush Election’ Rules Issued by the NLRB May Place Employers at a Disadvantage in the Election Process

December 15, 2014

On Dec. 12, 2014, the National Labor Relations Board (NLRB) announced that it will issue the long-anticipated “ambush election” rules on Monday, Dec. 15, 2014. The new rules, adopted by a divided NLRB split along party lines, will become effective on April 14, 2015, and will significantly speed up the union election process. The quickened timeline for union elections may hinder an employer’s ability to run an effective campaign, will rob employees of the time needed to make an informed decision on union representation and may place employers at a disadvantage in the election process.

Although the new rules will alter the landscape of the union election process in many ways, the most significant changes include the following:

  • The new rules significantly speed up the union election process. The new rules eliminate the previously required 25-day period between the time an election is ordered and the time an election is held. Elections will now be held at the earliest date practical. Thus, while in the past employers generally had six weeks to prepare for an election, under the new rules elections will likely occur 10 to 21 days after a petition has been filed.
  • Virtually all litigation over eligibility issues will be postponed until after the election. Disputes over voter eligibility and the scope of the bargaining unit will likely remain unresolved at the time of the election. The new rules give regional directors broad discretion to deem such litigation unnecessary until after the election. Uncertainty as to voter eligibility and the scope of the bargaining unit may undermine an employer’s ability to present an effective campaign.
  • Pre-election hearings will generally be held within eight days after a petition is filed, with an employer’s position statement due one day before the hearing. The employer’s position statement must identify the issues it wishes to litigate before the election. Any litigation inconsistent with the statement will not be permitted. The position statement must also include a list of the names, shifts, work locations and job classifications of the employees in the petitioned-for unit, and any other employees who the employer seeks to add to the unit. It may be difficult for employers to stake out legal positions and analyze and collect data necessary for the position statement under this shortened time frame. Additionally, these deadlines may distract an employer from putting necessary energy and resources into a now-shortened campaign.
  • Employers must electronically provide a list of employee information to union organizers within two business days of the direction of election. The list must cover all employees allowed to vote in the election and must contain, if available to the employer, the employee’s name, home address, telephone number, email address, work location, shift and job.
  • When a petition is filed, the employer must post and distribute to employees a detailed NLRB notice about the petition and the potential for an election to follow. Previously, this notice was voluntary and less detailed.
  • If the employer customarily communicates with its employees electronically, it must distribute all election notices to employees electronically, in addition to posting paper notices at the workplace. Prior rules required only paper notices.
  • Appeals related to elections will be consolidated into a single process. Therefore, any appeals of pre-election decisions will be postponed until after the election takes place.
  • Postelection reviews of issues will now be discretionary.
  • After the election, the parties have seven days to file both objections and offers of proof in support. The parties previously had 14 days to file offers of proof in support of objections.

Given the new rules, employers should take steps to prepare for a shortened election time frame. Among other things, employers should consider doing the following:

  • Educate employees on the employer’s position on unionization.
  • Train supervisors on detecting and reacting to union activity.
  • Modify campaign strategies to account for the shortened election time frame.
  • Prepare campaign materials for locations at risk for unionization.
  • Review supervisor designations and make any changes necessary to increase the likelihood that they will qualify as supervisors.
  • Review sites believed to be potential organizing risks and make any changes necessary to increase the likelihood that the employer’s desired unit is the only appropriate one.
  • Develop an internal playbook or strategy for responding to petitions, including representation case hearings.
  • Develop an internal rapid response team responsible for responding to petitions.

Please contact McGuireWoods’ labor team for any assistance you might need in acclimating to the new rules.

The new rules reflect a significant policy change in favor of labor unions, and we expect the NLRB will continue issuing decisions and rules to strengthen the power of labor unions. Therefore, employers should continue to monitor developments from the NLRB closely.