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Edwards Wildman Client Advisory - Employers Should Prepare Now For NLRB’s New “Ambush Election” Rule

On December 22, 2011, the NLRB finalized a controversial new rule designed to speed up the union election process. The new regulation severely limits the issues that can be litigated in the pre-election hearing and shortens the time period between the date that the NLRB directs an election and the date of the election. This rule gives a distinct advantage to unions by restricting employers’ opportunities to respond to union organization efforts. Employers should prepare now for the so-called “ambush election” rule, which is scheduled to take effect April 30, 2012.

Typically, the so-called union election process is initiated by the filing of a petition with the NLRB. Critical to the processing of the petition is a determination by the NLRB that the union has the requisite “showing of interest” by the employees that it seeks to represent. The union makes this showing by submitting authorization cards from employees stating that the employee who signed the card wishes to be represented by that union for the purpose of collective bargaining. The NLRB requires a relatively low percentage of employees in the proposed bargaining unit to sign cards, but a union typically will not file a petition until it has signed cards from substantially more than 50% of the employees in the unit. If the NLRB determines that there is an adequate showing of interest then a question concerning representation exists and the NLRB will process the petition.

Although there are a number of steps along the way to an election, one of the most critical is the pre-election hearing. This hearing is held if the parties are unable to stipulate to an election, including the scope of the bargaining unit, the exclusions from the unit and the date and time of the election. While a number of issues may be raised at the pre-election hearing, including whether there is a showing of interest, one of the most important is so-called unit issues which permit the employer to challenge the inclusion of particular employees or job categories of employees in the bargaining unit. For example, the employer may claim that employees who the union seeks to include in the proposed unit are supervisors, confidential employees, professionals or security guards. The NLRB will conduct a hearing on these unit issues, usually permit the parties to file post-hearing briefs and then direct an election in an appropriate bargaining unit.

Under current NLRB regulations, the election is not usually scheduled until at least 25 days after the direction (or stipulation) of an election. In addition to resolving unit issues pre-election, the current regulations provide the employer with time to effectively and lawfully communicate with employees to persuade them not to vote for the union. This time is essential to resisting an organizing drive because the union has had unlimited time to persuade employees (frequently without the employer being aware) to sign authorization cards.

Under the new “ambush election” rule, the only issue that can be addressed at the pre-election hearing is “whether a question of representation exists.” This means the only dispute that can be resolved at the pre-election hearing is whether the union has presented enough valid authorization cards to conduct an election. All other issues which now can be presented at a pre-election hearing, including unit issues, will be put off until after the election. In addition, the new regulation will limit (and may eliminate) post-hearing briefs, and also will eliminate a party’s right to file a pre-election request to the NLRB for review of a Regional Director’s Decision and Direction of Election. More importantly, the new regulation does away with the current rule that an election should not normally be scheduled until at least 25 days after the direction of election.

The inevitable effect of this new rule will be to give unions a substantial advantage in NLRB-conducted elections by hamstringing an employer’s ability to convey its own message to employees, to persuade employees not to vote for the union and to successfully repel union organizing efforts. Not surprisingly, the new rule has sparked controversy, with some pro-management groups claiming it will give unions an unfair advantage in NLRB elections and will lead to increased post-election litigation which in turn will create greater instability between labor and management. On December 20, 2011, the United States Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit against the NLRB which seeks to block implementation of the “ambush election” rule.

If this challenge is unsuccessful and the new rule goes into effect as scheduled on April 30, 2012, employers will have limited time and opportunity to respond to union election petitions. To the extent possible, employers should prepare now so that they can react immediately to union organization efforts.

Of paramount importance, managers and supervisors must be trained to keep their ears to the ground to identify issues in the workplace that might make employees susceptible to union organizing efforts. The best defense to a union organizing drive is to have a workforce that has no reason to be interested in a union. While no means exhaustive, employers can have open door policies, establish an internal grievance procedure and hold regular meetings with employees to detect and address matters that are of concern to employees. Under appropriate circumstances, employers may also conduct more formal surveys of employees to identify areas of concern that need to be addressed.

This approach also will increase the chances that the employer will become aware of union activity early on, which will permit the employer to try to head off the filing of a petition for an election. Once an employer is aware of union activity, it must comply with a variety of rules that govern what managers and supervisors can do and say to employees. Prompt and effective training of managers and supervisors to comply with these rules is critical.

If an employer is able to show its employees that it can address and remedy employee concerns, a union may be thwarted in its efforts to find support among those employees. By handling employee concerns at the outset, employers may be able to stop union organization efforts before a union election petition is even filed.

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