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