Ambush Rule Guidance: Time Will Tell How Long Union Election Periods Last

By Allen Smith April 9, 2015

The ambush election rule—referred to by the National Labor Relations Board as its representation case rule—takes effect April 14, 2015, and will, according to April 6 guidance from General Counsel Richard Griffin Jr., eliminate duplicative and unnecessary litigation and reduce unnecessary delays. Employers, meanwhile, fear the rule will dramatically shorten the union election period, making it difficult for employees to hear employers’ side about unions.

But the guidance and final rule do not establish new time frames for conducting union elections or issuing decisions, the guidance notes. Instead, the board “will not be able to fully assess what impact the rule will have on the overall timing of elections until we have had some experience processing representation petitions under the final rule.”

Pre-Election Hearing Issues

The guidance outlines issues that must be litigated in a pre-election hearing if in dispute, including:

  • Jurisdiction. Issues relevant to whether the board has jurisdiction over the employer must be litigated at the pre-election hearing.
  • Labor organization status. If a party contends that an entity isn’t a labor organization or refuses to stipulate to such status, the regional director must resolve the issue.
  • Bars to elections. All potential election-bar issues—including certification bar, contract bar, recognition bar, successorship bar and election bar—must be litigated and resolved before an election.
  • Appropriate unit. The finding of an appropriate unit always must be made before an election.
  • Multifacility and multiemployer issues. When an employer operates at multiple locations, issues involving which facilities should be included in a unit must be litigated at the pre-election hearing.
  • Expanding and contracting unit issues. If the employer contends that its business will close soon, the regional director must make a pre-election determination on this issue. Also, the regional director must make a pre-election determination if the employer argues the petition should be dismissed because the bargaining unit is expanding and the employer does not employ a substantial and representative complement of employees.
  • Employee status of a significant portion of the unit. Determinations of whether individuals are statutory employees or independent contractors, or graduate students rather than employees, should be made at the pre-election hearing if the classifications constitute more than 20 percent of the unit.
  • Seasonal employees. Whether the employer is a seasonal operation is an issue that must be decided at the pre-election hearing because it impacts the date when an election is held.
  • Inclusion of professional employees or guards with other employees in a unit. The issue of whether individuals are professional employees must be decided before the election because professionals must be given an opportunity to decide whether to be included in a nonprofessional unit, requiring special balloting procedures. If a party contends an individual is a professional and the appropriate unit description excludes professionals, the contested individual can vote subject to challenge. Special rules also apply to guards.
  • Eligibility formulas. If a party says a different eligibility formula than the standard one should be used, this must be addressed before the election.
  • Craft and health care employees. A determination about whether a petitioned-for craft unit is appropriate should be made before the election. And a determination must be made as to whether the employer is an acute-care hospital such that health care unit rules apply.

Except for jurisdiction, preclusion will apply if any of these issues are not raised in the position statement or disputed at the hearing.

Position Statement

“Both the docket letter and the notice of representation hearing will specify the due date for the statement of position, which will be noon on the business day before the opening of the hearing if the hearing is set to open eight days from service of the notice of hearing,” the guidance provides.

“If the hearing is set to open more than eight days from the service of the notice, the regional director may set the due date for the position statement earlier than at noon on the business day before the hearing. However, parties will have at least seven days’ notice of the due date for completion of the statement of position form in all cases,” it adds.

“The statement of position form generally will be due no later than noon (in the time zone of the region issuing the notice of hearing) on the business day before the hearing so that it may serve its intended purposes of facilitating entry into election agreements and narrowing the scope of any hearing that must be held, thereby enabling the board to expeditiously resolve questions concerning representation,” the guidance states.

Post-Election Resolutions

While the guidance notes a number of items that must be decided before an election, it also outlines the following as able to be deferred post-election:

  • Litigation and resolution of issues as to whether certain classifications are included in the unit may be deferred if the petitioned-for unit is an appropriate unit and the number of persons in the disputed classifications would not significantly change the size or character of the unit.
  • Disputes over who is a supervisor or manager, at the regional director’s discretion.
  • Disputes over whether an individual is employed by his or her parent or spouse.
  • Issues concerning whether individual employees or small groups of employees fall within an appropriate unit, such as whether an employee is office clerical or plant clerical.
  • Disputes over whether an individual should be excluded as a temporary employee or included as a regular part-time employee.

“I am confident that the guidance provided herein will allow regions to implement the final rule effectively and efficiently,” Griffin said. “I am also confident that the dedication and professionalism consistently demonstrated by the personnel in the agency’s field offices will be exhibited in the implementation of the board’s new representation procedures.”

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


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