The NLRB “Steals” Christmas with New “Ambush” Election Rules

December 17, 2014 | By Michael S. Pepperman

Feeling the holiday spirit, the National Labor Relations Board (NLRB) (i.e., management’s “Grinch”) has stolen any chance for employers to enjoy the holidays, while bestowing another significant Christmas gift on Big Labor—new union representation election rules (or as many are calling them, the Ambush Election Rules). Adding another tool to Big Labor’s organizing arsenal, the NLRB’s gift will surely be the gift that keeps on giving!

On Friday, December 12, 2014, the NLRB finalized their new election rules, which will change union election procedures and shorten an employer’s time period to run a campaign and educate its workers. For years, the average period of time between the filing of a petition for an election until the actual election has been 42 days.  This six-week period most often is the only time period that an employer has to spend talking to its employees about the election process, the union’s efforts and promises, and the risks that often accompany unionization.  Under the new rules, it is anticipated that the 42-day election campaign period may be as short as 25 days! By shrinking this time period, employers will find a more difficult battle ahead of them if they want to remain union-free. The rule was published in the Federal Register on December 15, 2014, and will go into effect on April 14, 2015. A copy of the (voluminous) newly adopted rule can be found here.

According to the NRLB, the new rules are intended to streamline the current election procedure, including the following important changes:

  • Union election petitions can be filed electronically, rather than by fax or mail, to make it easier to initiate the process.
  • When an employer maintains its employees’ personal e-mail addresses and phone numbers, it must disclose to the union that information for the individuals included on the voter list (Excelsior List) within two (2) business days of the Regional Director’s approval of an election agreement or Decision and Direction of Election. The “old” rule provides that the list be submitted within seven (7) days and did not require the provision of e-mail addresses and phone numbers.
  • Pre-election hearings (to address any issues that may be deemed to be impediments to having an election) will be scheduled within eight (8) days of the filing of a petition. Prior to the pre-hearing election, employers must provide a list of prospective voters, including job classifications, work schedules and work locations to the Regional Office of the NLRB and to the union.
  • The scope of pre-election hearings will be limited (for example, the eligibility of individual voters is likely to be put off until after the election is held), and NLRB hearing officers will have great latitude in determining what evidence the parties can present at the hearing.
  • At least one day prior to the pre-election hearing, the parties must identify and file a position statement containing all disputed issues; otherwise, parties run the risk of waiving those issues.
  • Once the Regional Director directs an election to take place, obtaining a stay of the election pending an appeal to the NLRB will no longer automatically be permitted.
  • Employers are required to provide more detailed information when posting the Notice of Petition for Election and the Notice of Election.

To assist employers in understanding these significant changes to the election procedures, the NLRB has issued a Fact Sheet, containing a side-by-side comparison of the changes to current procedures.

In light of the new election rules and the NLRB’s renewed commitment to fast-track election procedures, employers should begin preparing to rapidly respond when a union petition is filed. Time is no longer on the employer’s side. The new election rules comes on the heels of the NLRB’s decision in Purple Communications, Inc., 361 NLRB No. 126 (2014), (discussed on HRLegalist by Thomas Hearn), which gives employees the right to use their employers’ e-mail system(s) to actively communicate about union organizing, wages and other working conditions during “nonworking time.” In 2013, the NLRB conducted 1,337 elections, with unions winning 882 of those elections (a 64.1% win rate for unions).  Bloomberg BNA Annual Report on Representation Election Statistics (May 5, 2014). With the shortened election campaign period and employees’ newly granted right to use employer-provided email systems to rally employees to participate in union organizing efforts, employers should anticipate an increase in union organizing, the number of union elections, and a decrease in the number of elections won by employers.

So, that is the tale of how the NLRB “Grinch” stole Christmas from management this year, and left a great big present under Big Labor’s tree, just in time for the holidays. 

About the Authors

Michael Pepperman

Michael S. Pepperman

Partner

Mike is the Chair of Obermayer’s Labor Relations and Employment Law Department. Mike is an accomplished attorney known for his tireless advocacy on behalf of his clients. He focuses his practice exclusively...

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