Employers Must Be Prepared to Respond to an Ambush Election

Stephen R. McCutcheon, Jr., Attorney at Law

The National Labor Relations Board’s new rule to expedite elections and limit employer rights in representation cases – referred to by many as the “Ambush Elections Rule” – went into effect on April 14, 2015. Legal challenges to the rule continue to work their way through the courts, and in March of 2015 President Obama vetoed a resolution that would have protected the balance and due process provided by the prior long-standing election procedures.

In recognition of the fact that this rule represents a significant change from prior standards and procedures, NLRB General Counsel Richard Griffin has issued a lengthy “Guidance Memorandum on Representation Case Procedures” providing a section-by-section interpretation of how the new election rule is to be implemented.

The new rules dramatically shorten the time between the filing of a petition for a representation election and the election, and limit the due process afforded to individual employees and employers in the election. Significantly, the new rule gives the employer only seven calendar days to submit a comprehensive Position Statement challenging whether the proposed unit is appropriate, identifying all employee groups that should be included or excluded from the unit, and attacking the voting eligibility of any specific individuals they contend are not entitled to vote, and stating the basis for the challenge. Although these issues must be raised in the Position Statement prior to the election, most disputes concerning who is eligible to vote and who is included in the bargaining unit will not be heard until after the election.

It is not only employer rights that suffer under the new rule. The NLRB’s expedited process has been characterized as a “vote now, understand later” election as there is not sufficient time for employees to become educated and vote based upon a fully informed understanding of their representation options and the effect of an election. Employee privacy rights are also sacrificed in favor of facilitating the expediting organizing of companies. Within two days of the NLRB’s direction that an election take place, the employer must provide the union with the full names, work locations, shifts, and contact information (including home address, e-mail address, and home and personal cell phone numbers) of the employees. Employees cannot opt-out of this disclosure.

The full impact of this shift will not be discovered for some time, but as many labor law practitioners have seen, unions delayed the filing of election petitions in order to take advantage of the new election procedures. In light of the substantial changes to election procedures under the new rule, employers should review the rule and guidance memorandum and establish a relationship with experienced labor law counsel before a petition is filed. Employers should also take steps to maintain a healthy workplace with regular and open lines of communication between employees and management, provide supervisors and managers with effective training regarding employee satisfaction and organizing, and review employee benefits and workplace policies. Employers who wait until they receive a representation petition to start preparing for an election or consider employee satisfaction will find themselves in a much more difficult position than if they had taken appropriate steps beforehand.

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