NLRB’s ‘ambush’ election rule: 12 things all employers need to know now
Here’s a choice for you: Pore over the National Labor Relations Board’s (NLRB) 700-page new “ambush” election rule — or read our less-than-700-word breakdown of what it actually means to you.
First things first: If you’re up for it, you can find the rule in its entirety here.
The rule will take effect April 14, 2015, and it reduces the amount of time between when a group files a union representation petition and when a union election will be held.
The NLRB claims the new rule was intended to “simplify representation-case procedures, codify best practices, and make them more transparent and uniform across regions.”
But what it has actually done is shorten the amount of time between when workers say, “Hey, I think we should unionize” and when an the actual union election should be held.
Dissenting employers say this significantly reduces the amount of time they have to speak to potential voters to educate them on the facts of union representation.
Bottom line: The new rule is a windfall for organized labor.
While the rule doesn’t say when an election must be held following a petition, it does direct regional directors to schedule the election “at the earliest date practicable.”
Some of the rule’s highlights:
- Parties may now file representation petitions electronically.
- The employer must provide the personal email addresses and phone numbers of voters on the voter list so that non-employer parties (a.k.a., organized labor organizations) can communicate with those voters about the upcoming election.
- The voter list must be provided within two days — instead of seven — following the direction of election.
- A pre-election hearing must be scheduled to begin eight days after a petition is submitted.
- A post-election hearing must begin 14 days after the filing of objections.
- Regional directors must schedule the election through a direction of election rather than permitting the parties to agree on a date.
- The 25-day stay of election following the regional director’s decision and direction of election has been eliminated.
- Generally, a non-petitioning party (typically an employer) will be required to respond to the petition and state its position the day before the pre-election hearing begins.
- The petitioner will have to respond to the issues raised by the non-petitioning party at the opening of the hearing.
- Generally, any other litigation inconsistent with the positions taken by either party will not be allowed.
- Written post-election hearing briefs will not be allowed unless a regional director determines one is necessary. Instead, all parties will have an opportunity to present an oral argument before the close of the hearing.
- Generally, only issues necessary to determine whether an election should be conducted will be litigated pre-election. That means voter eligibility issues and disputes will be handled after the election, unless an issue involves 20% or more of the bargaining unit.
This rule is one of the more sweeping regulatory changes ever implemented by the NLRB.
Elections in less than 21 days
Now union elections can occur in as little as “just 10 to 21 days after the union requests a vote,” according to an analysis by the law firm Ogletree Deakins.
The firm also said that as a result of the new rule, “Union election win rates will likely increase as employers are blindsided by petitions and denied the time necessary to effectively communicate with employees about unions and unionization.”
Under the current rules, union elections typically occurred over a six- to seven-week period.
Will the rule stand?
While the new rule is scheduled to take effect in April, this issue will likely drag on much longer as the validity of the rule is likely to be challenged. But until it gets kicked to the curb (if it ever does), it’ll provide a big boost for unions.
Any challenges to the rule are likely to start with the issues brought up by the two NLRB members who voted against the new rule (the final vote was 3-2).
The dissenting board members’ problems with the rule:
- The rule would essentially create what they called an impermissible “election now, hearing later” process in which a vote would take place before the question of who’s allowed to vote is even answered.
- The expedited election process limits the time needed for employees to understand important issues, compelling them to essentially “vote now, understand later.”
- By requiring elections to occur so quickly, the NLRB is essentially curtailing the rights of employers, employees and unions to engage in protected speech.
