Ambush Election Rule Catches Many Employers Flat-Footed

By Allen Smith April 13, 2015

Effective April 14, 2015, the ambush election rule is “an unwelcome wake-up call” for some employers, according to Joel Barras, an attorney with Reed Smith in Philadelphia.

“The vast majority of employers are not ready,” Michael Lotito, an attorney with Littler in San Francisco and former chair of the board of directors for the Society for Human Resource Management, told SHRM Online. “Unions have done so little for so long in traditional organizing that many employers simply do not see the unions as a threat.”

He added, “Also, many employers are very comfortable in the relationship they have with their employees. Thus, there is a certain attitude that until unions begin to really take advantage of the new rule, it is reasonable to wait and see what will happen while the employer deals with the immediate fire of the day.”

Position Statement

“Many employers are not ready to deal with the immediate increased workload caused by the rule, such as the statement of position,” said Howard Bloom, an attorney with Jackson Lewis in Boston, and Philip Rosen, an attorney in Jackson Lewis’ New York City office, in an e-mail. “Some employers are developing preventive plans now so they can deal with the shortened time, but others are not. We think it is important for employers to develop their contingency plan now.”

The rule not only will dramatically shrink the time between the filing of a union election petition and the election, but it will impose new obligations on the employer, such as filing a detailed written position statement, noted Brian Hayes, a former member of the National Labor Relations Board (NLRB) and an attorney with Ogletree Deakins in Washington, D.C.

The statement must include the employer’s legal position regarding the petition, the proposed bargaining unit, the employee classifications that are included and/or excluded, and all other legal issues regarding the petition and election within approximately one week of the election petition, Hayes observed. “If an employer fails to raise any particular legal issue in this document it will have waived its right to do so later on,” he said.

“A few larger and more sophisticated employers have made some preparations for the advent of the rule. Most employers, however, have not,” Hayes remarked. “Smaller employers are particularly at risk of being caught unprepared. Adding to the problem is the fact that most union organizing these days already targets these same smaller employers.”

Hayes recommended that certain legal issues that have previously been dealt with only at the outset of a union campaign instead be considered right now.

“For example, who are actually a company’s legal ‘supervisors’ that are excluded from coverage under the NLRA [National Labor Relations Act]?” he asked. “What evidence is there to prove these individuals are legal ‘supervisors’? If there was a union vote, what would be the voting group which would provide the employer with the best chance to win? If a union were to win an election, what would be the optimal grouping of employees to cover under a collective bargaining agreement? How would we convince the NLRB that these groups constitute ‘an appropriate bargaining unit’?”

Identifying who is a supervisor is important not only because supervisors can’t vote in an NLRB election, but also because supervisors may be required to communicate the employer’s views on unionization in conversations with employees, Bloom and Rosen noted. “Nonsupervisors may not be asked by an employer to take on this communications role on behalf of the company,” they added.

Union Inoculation

Employers need to take steps to inoculate themselves from union organizing, and that primarily means focusing on communications with employees, where communications are a two-way street, according to Barras. Employers should “create a culture of respecting employees’ opinions. That takes away one of the biggest reasons companies unionize”—the feeling that employees don’t have a voice.

So, that means explaining in detail why the cost of health care is going up during open enrollment, for example. Or explaining why a company needs to undergo cost-containment, he added.

Employers also should periodically provide information on the downsides of unionization, such as paying dues and losing the direct connection to an employer and instead having to go through the union. But “you do not want to inundate employees or go overboard,“ Barras cautioned.

“Employers need to be far more proactive about continuously addressing the root causes of unionization,” Hayes said. “Employers will need to assure on an ongoing basis that wages and benefits are fair and competitive, that instances of supervisory or managerial dysfunction are promptly recognized and addressed, and that there is a meaningful work-based engagement with employees.”

‘Pivotal Moment’

“This is a pivotal moment for organized labor,” according to Bloom and Rosen. “The new rule’s shortened time frames help the labor movement, so it is a good opportunity for unions to try to win a larger share of the workforce. Unions have an impressive win rate now, but few elections are held. The new rule could tip the balance, resulting in more elections since the immediate return might be quicker. That—more elections—will be key, since the labor movement’s current win rate—almost two out of three elections—is already high.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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