Labor & Employment Law | New NLRB "Ambush" Election Rules

Client Alert

April 15, 2015

The long-dreaded “Ambush” election rules from the NLRB took effect April 14, 2015.

The new rules substantially limit the time between the filing of a petition and the election; substantially increase the burden on the employer to provide information and substantially shorten the time an employer has in which to engage in a campaign. Throughout the preamble and comments, the NLRB has made it clear that the intent of the new regulations is to run an election as quickly as possible which, of course, will give the employer the shortest period of time to respond to a union election petition.

Significant changes include:

  • The petition will be served immediately on filing by electronic means if that is available to the employer.
  • The hearing will be scheduled eight days after the election petition has been served on the employer, which would usually be the same day of its receipt.
  • Within two days of service of the petition, the employer will have to post a Notice of Petition for Election.
  • By noon on the day before the hearing, the employer will have to provide a statement of position, which shall include:

a. For employees in the units proposed by either party:

- Full names of voters in the proposed classifications

- Work locations

- Shifts and

- Job classifications

b. The employer must raise any procedural and substantive challenges to the petition for a unit.
c. The employer must provide its position concerning the appropriate date, time, and location of an election.
d. The failure to raise an issue at this stage will waive the employer’s right to contest the issue later.

  • The hearing will continue without interruption until conclusion except for Saturdays, Sundays, and holidays.
  • Unless discretion is granted to file a written brief, the positions of the parties will be argued orally at the end of the hearing.
  • As soon as possible after the hearing, the Regional Director will issue a Decision and Direction of Election. The Election Notice, which must be posted and transmitted electronically by the employer, must be up for three working days prior to the election. Requests for review and appeals will not stay the election except under extraordinary circumstances.
  • Two days after the Decision of Direction of Election, the employer will be required to provide a voter eligibility list electronically in a format specified by the General Counsel, which includes:

a. Full name of employees in an electronic format suitable for sorting
b. Home addresses
c. Personal email addresses
d. Personal cell phone numbers
e. Home email addresses
f. Home telephone numbers
g. Work location
h. Shift and
i. Job classification

The employer need not provide work email addresses and work telephone numbers.

As a result of these changes, the elections are expected to be held in most cases within 15 to 22 days after the petition has been filed. The employer’s ability to introduce evidence and argument at hearing has been substantially curtailed. The new effect is that employers must be well-prepared to have any hope of getting a clear message out to employees with respect to the issues surrounding unionization. It is very important that employers have accurate job descriptions and titles as well as accurate lists of employees.

Practical Tips for Employers

Under the prior regulations, many employers felt that they could wait until a petition was filed before implementing a response strategy. That is no longer a realistic option. Employers who wish to be as prepared as possible for an ambush petition should take the following steps ahead of time:

  1. Conduct vulnerability assessments of locations thought to be at-risk
  2. Develop a statement of the employer’s philosophy on unions and unionization, and educate employees on it
  3. Review handbooks and policies to ensure compliance with the latest NLRB decisions (and avoid a successful election result being thrown out)
  4. Identify which employees meet the NLRB test for supervisor status and train supervisors on detecting and responding to organizing activity
  5. Develop campaign materials.

If you have further questions or would like to discuss strategies to manage these developments, please contact a member of Downs Rachlin's Labor and Employment Law Group.

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