On April 14, 2015, after a four-year battle, the National Labor Relations Board’s (NLRB) final “ambush election” rules, which will dramatically shorten the time between requests for a vote and a union election, go into effect. The controversial new rules will significantly alter the timing of union representation elections supervised by the NLRB and will tilt the elections in unions’ favor. The rules also strip employers of a number of rights related to the representation case process.

The new rules, which give employers less time to effectively communicate with employees about unions and unionization, will make it easier for unions to successfully organize. In December of 2014, when the NLRB first implemented the new representation-case rules, we provided an overview of the most significant changes that the new rules will bring. Among these are

The New Election Process

The Accelerated Election Process. Most union representation elections will likely be held in a range from 10 to 21 days after a petition has been filed.

Voter Eligibility Issues. Under the new rules, most disputes over voter eligibility and inclusion or exclusion into a bargaining unit will be resolved after the election.

Expedited Hearings. The new rules drastically reduce the number of pre-election hearings. In addition, all pre-election hearings must begin just eight calendar days after the date a hearing notice is issued.

Burdensome “Statement of Position” Requirements. During the period between a petition being filed and a hearing being held, employers are required to research and file a detailed legal position statement addressing issues such as exclusions from the bargaining unit; the appropriateness of the unit; and the proposed date, time, and place of the election. Employers must now file this “Statement of Position” by noon on the day before the hearing begins. The Statement of Position must include a list of prospective voters with their names, job classifications, work shifts, and work locations. All issues not raised in the Statement of Positions will be waived.

Limited Scope of Hearings. NLRB Regional Directors will be vested with discretion to limit the scope of pre-election hearings, by excluding evidence on voter eligibility and delaying the resolution of those issues until after the election.

Employees’ Contact Information. Employers must provide unions, within two business days of the election agreement or decision directing an election, their employees’ personal telephone numbers and personal email addresses. Specifically, employers seeking a pre-election hearing must provide unions with (1) a list of all employees in the challenged, petitioned-for bargaining unit; and (2) a list of all employees in the unit that the employer contends is appropriate. Two business days after the unit issue is decided, employers are required to electronically provide the union with a list including each employee’s name, home address, telephone number, email address, work location, shift, and job classification.

Practical Effect of the New “Ambush” Rules

The new rules reduce the time from the union’s filing of a petition until the date of the election to as little as 10 to 21 days (as compared with the current median time of 38 days), depending on whether the union waives its rights to receive an expanded list of employee contact information within 10 days before the election date. The rules require the direction and scheduling of the election “as soon as possible.” The “quickie” election date will prevent employers from effectively communicating with their employees prior to the election and will deprive employees of being fully informed prior to voting.

In addition, the new rules will leave undecided until after the election such critical questions as supervisory status and eligibility to vote. Also, these “quickie” elections will be further complicated in connection with the Board’s approval of small, fractured bargaining units based on a union’s ability to organize, unless the employer proves an “overwhelming community of interests” with the excluded employees, stemming from the Board’s Specialty Healthcare decision. The elections will also be further stacked in the union’s favor because of the Board’s Purple Communications decision as a result of which employees now have the ability to campaign before a petition is filed with the use of employers’ email systems. The combination of these decisions affecting the filing of the petition and the scheduling of the “quickie” election will, in effect, “ambush” employers.

Strategies for Employers

Employers wishing to remain union-free should take the following steps:

  • Review our attached legal checklist for representation hearings.
  • Determine which employees meet the NLRB test for supervisor status and train those individuals on how to detect and react to a union campaign.
  • Develop appropriate campaign material in advance of a petition being filed.
  • Identify and train a management response team to work with counsel in developing effective communications with employees.
  • Prepare a draft campaign calendar that fits within the 10 to 21 day time period for elections.
  • Educate employees on the company’s position on unions and unionization.
  • Conduct vulnerability assessments at select or at-risk locations.
  • Analyze bargaining unit issues at select or at-risk locations.
  • Prepare an outline for the required NLRB position statement and collect supporting exhibits.
  • Review handbooks and personnel policies to ensure NLRB compliance and avoid a rerun election.

Congressional Actions

Efforts to block the “ambush election” rules through the Congressional Review Act succeeded in resolutions before both houses of Congress, passing the House in a 232-to-186 vote and the Senate by a vote of 53-to-46.). President Obama exercised a “pocket veto” by refusing to sign the resolution of disapproval. It is unlikely that there are enough congressional votes to override the president’s veto.

Legislation to overturn the new rules, and appropriations riders to stop funding that will be used to enforce the new rules, will likely be vetoed as well.

Pending Litigation

Two lawsuits challenging the new rules are pending on motions for summary judgment before the U.S. District Court for the District of Columbia (Chamber of Commerce v. NLRB) and the U.S. District Court for the Western District of Texas (ABC of Texas v. NLRB). A hearing on the summary judgment motion is scheduled in the Texas case for April 24, 2015,and a decision from the judge in the District of Columbia case is expected in the near future.

This topic will be discussed in detail at Ogletree Deakins’ 2015 National Workplace Strategies seminar on May 13-16, 2015 at the Grand Hyatt hotel in San Antonio, Texas.

Harold P. Coxson is a principal with Ogletree Governmental Affairs, Inc. and a shareholder in the Washington, D.C. office of Ogletree Deakins.

C. Thomas (Tom) Davis is a shareholder in the Nashville office of Ogletree Deakins, and he chairs the firm’s Traditional Labor Relations Practice Group.

Eric C. Stuart is a shareholder in Morristown office of Ogletree Deakins and a member of the firm’s Traditional Labor Practice Group steering committee.

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