NLRB ‘Ambush’ Election Rule: Be Prepared

By Michael VanDervort June 1, 2015

On April 14, 2015, a new rule from the National Labor Relations Board (NLRB) took effect, changing the administration of representation cases in which the board conducts an election to determine whether employees wish to be represented by a union for the purposes of collective bargaining. The so-called “ambush” election rule significantly shortens the cycle time in the election process, effectively making it easier for a union to win a representation election. The new rule also greatly limits employer rights.

Employers can take some steps to prepare for the final rule, but first need to familiarize themselves with the changes.

Traditional Election Process

Under the old rules, which had been in place for many years, the election process allowed employers and the union to resolve many issues before the election was conducted by the NLRB. In the traditional election process:

  • On average, elections were held between 38-42 days from the filing of the initial petition for election.
  • Election issues and details were generally settled between the parties before the election was held, usually by a stipulated agreement as to the appropriate unit and specific election details.
  • If issues could not be settled by stipulation, then a hearing was held with the NLRB to resolve issues before the election was conducted. Attorneys could file a brief summarizing the issues.
  • Typical election issues could include determining who was eligible to vote in the election, the scope of the unit, whether the union was actually a labor union, supervisory status and many others.
  • Employers were required to provide the voter eligibility list (Excelsior list) only after reaching a stipulated agreement or a decision by the regional director.
  • Employers were required to do one posting of a notice of election, three working days prior to the date of election.

New Rule

Under the new rule, the period between the filing of the petition and the election has been significantly shortened, the ability of employers to appeal issues has been greatly reduced, and companies are required to provide unions with more information than they were before. Here are just some of the changes:

  • Elections will probably be conducted somewhere around 10-21 days from the filing of the initial petition for election.
  • Under the new rule, hearings are no longer required to settle election issues. Regional directors are empowered to limit hearings, and in most cases, election issues related to scope of unit, voter eligibility, supervisor status and other questions will be resolved afterthe election.
  • When an employer requests a hearing, it will be required to file a “statement of position” document or brief before a hearing. Since the hearing must be held within eight days, this means employers and their legal team have just over one week to prepare and file a complex legal brief. The statement of position must include a list of prospective voters with detailed employee information, such as names, job classifications, shifts and work locations. Any issues not raised at the time of filing of the statement of position are waived from future proceedings.
  • As part of the voter eligibility or Excelsior list, employers will be required to provide unions with additional employee information that was not previously required, including personal phone numbers and e-mail addresses, as well as other information including names, home addresses, work locations, shifts and job classifications. All information must be provided electronically in a spreadsheet format just two days after the unit is determined.

Preparation Tips

HR professionals should review their employee relations policies in the face of this new reality to ensure they are competitive.

  • Analyze your employee opinion surveys with an eye to areas where risk may be high and take steps to alleviate those issues.
  • Most employers will already have some level of a labor relations response plan in place, even it is just a supervisory training program covering the basics of labor/employee relations and the basics of the NLRB. If you don’t, get started with this immediately. *Make sure your supervisors all know how to report any potential union organizing.
  • Train supervisors on how to deal with protected concerted activity and how to speak to employees about unions in a legal manner.
  • Identify competent legal counsel with expertise in labor relations and start the process of reviewing your organization for legal issues in advance. Ask counsel to conduct a basic unit determination review. You will not have time if you receive a petition for election. You need to have your legal position prepared in advance under the new rule.
  • Update your handbook to ensure compliance with current NLRB decisions, including those relating to social media.
  • Make sure your handbook includes a company position on unions. You also may want to include this statement in your new employee orientation, and in regular periodic communications with your workers.

Michael VanDervort is a member of the SHRM Labor Relations Special Expertise Panel.

Related SHRM Articles:

Ambush Rule Guidance: Time Will Tell How Long Union Election Periods Last, SHRM Online Workplace Law, April 2015

Ambush Election Rule Catches Many Employers Flat-Footed, SHRM Online Workplace Law, April 2015

Related Resources:

NLRB’s New ‘Ambush Election’ Rules Go Into Effect: Is Your Organization Ready?, Ogletree Deakins

NLRA Representation Case Legal Checklist, Ogletree Deakins



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