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NLRB Ambush Election Rule Takes Effect Today

Volume 14, Issue 7
April 14, 2015

Starting today, absent the issuance of an injunction by a federal court, all representation cases filed with the National Labor Relations Board (NLRB) will be subject to the NLRB's new union representation election rule. Commonly referred to as the "ambush election rule," the NLRB's new union election procedures severely shorten the time between the filing of a union election petition and the election itself, reducing the ability of employers to educate their employees about the impact of unionization and depriving employees of time to fairly assess their options. Typically, uncontested union elections were held within forty-two (42) days following the filing of a union petition for election. The NLRB's new union election rule will cut that period in half. NLRB Members Miscimarra and Johnson, who voted against adoption of the new union election procedures, continue to express their concern that the procedures will result in fundamental unfairness to employers.

The NLRB's new election rule provides:

  • Parties may file or transmit documents electronically, rather than by using mail, hand-delivery, or fax.
  • When a union files a petition for a union election, it must serve a copy of the petition on the employer, along with the NLRB's description of the new representation case procedures, and a Statement of Position form that identifies issues to be raised at the pre-election hearing. The NLRB Regional Director will serve a Notice of Petition for Election and Notice of Hearing on all parties, likely the same day as the petition was filed.
  • The employer must file its own Statement of Position form, generally by noon of the business day before the hearing, identifying the issues it has with the Petition. The petitioner will respond to the issues in the employer's Statement of Position at the beginning of the hearing. During the hearing, the parties will be limited to litigating only those issues that were raised in their Statements of Position or responses to the other's Statement.
  • At the same time the employer files its Statement of Position form, the employer must also file a list of prospective voters, with their job classifications, shifts and work locations.
  • The employer must post a Notice of Petition for Election within two (2) business days after being served by the NLRB. This posting provides more detailed information about the election and voting process to prospective voters.
  • Pre-election hearings will generally be scheduled to begin eight (8) days after the Notice of Hearing is served on the parties. The Regional Director may postpone the hearing for up to two (2) business days with a showing of special circumstances, or more if there is a showing of extraordinary circumstances.
  • Generally, only those issues necessary to determine whether an election should be held will be heard in the pre-election hearing. Disputes concerning voter eligibility or inclusion do not have to be decided before the election, and may be heard post-election. This portion of the new NLRB election rule will create uncertainty as to whether an employee is a "supervisor" or simply a lead person.
  • All parties may make a closing argument at the hearing. Written briefs, which were previously commonplace, will be permitted only if the NLRB Regional Director decides they are necessary.
  • The employer must submit a final voter list, including phone numbers and e-mail addresses, to the union within two (2) business days of the Regional Director's approval of an election agreement or decision directing an election.
  • Under the prior rule, if a party seeks a Request for Review by the NLRB of a Regional Director's decision, the election was delayed twenty-five to thirty (25-30) days. The new rule provides that the election will not be stayed after the Regional Director issues a decision and direction of election, unless the NLRB orders otherwise.
  • Post-election, each party may make a single post-election request for review of all pre-election rulings by the Regional Director.
  • Post-election hearings on objections to conduct affecting the results of the election generally will begin twenty (21) days after the tally of ballots is issued. Either party has up to seven (7) days after the tally to file objections.
  • Post-election exceptions and requests for review will now be filed directly with the Regional Director, not the NLRB.

On April 6, 2015, NLRB General Counsel Richard Griffin issued a guidance memorandum on the new union election procedures outlining how union representation cases will be processed from petition filing through certification.

A practical result of the NLRB's ambush election rule is that employers must make sure their employees understand the risks of unionization prior to ever receiving an election petition.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.