30 July 2015

The NLRB’s “Ambush” Election Rules are Here: Are You Ready?

On April 14, 2015, the National Labor Relations Board (NLRB) implemented its oft-discussed “quickie” or “ambush” election rules. These rules accelerate the period of time between the filing of a union election petition and the election itself. Not coincidentally, the new rules limit the ability of employers to communicate with their employees during a union organizing campaign while simultaneously requiring employers to identify and address significant legal issues within just a few days after an election request is filed. In the past, employers had an average of 42 days from the date the union filed an election petition to the actual date of the election. Under the new rules, the Board can conduct an election in as few as 11 days after the petition is filed.

The new election rules have been in effect for over three months. The Board’s stated goal is to average 21 days from the filing of the petition to the election. And the Board has come pretty close to achieving that goal. So far, the average number of days between petition and election has been only 24 days. This represents 14 fewer days for employers to communicate with employees, a 35 percent decrease from the average in 2014. That is two weeks that an employer no longer has to communicate with their employees about why unionization may not be such a good idea.

Several employer-advocate groups lodged legal challenges almost immediately after the Board implemented the new rules. To date, however, those challenges have been unsuccessful. Recently, a federal district court in Texas dismissed a challenge by a group of building contractors in Texas to halt enforcement of the new rules. A lawsuit filed by the Chamber of Commerce is still pending in federal district court in Washington D.C., but its success is far from certain and one federal court in Washington D.C. refused to grant a temporary restraining order to preclude application of the new rules while litigation proceeds.

Because the new election rules will likely remain in effect for the foreseeable future, if not longer, it is more important than ever that employers take a proactive approach to union avoidance. Employers will no longer have multiple weeks after a union election petition is filed to get their message out to employees. Practically speaking, employers facing an organizing drive may now have just days to communicate effectively with their employees—all while managing complex legal issues related to the election.

Employers should consider holding training sessions with front-line managers and supervisors to help minimize the potential impact of these new rules. For example, do your supervisors know the early warning signs of union organizing activity? Do they know what to look for and what they can and cannot say legally? Are they going to clam up and miss important opportunities to convey lawfully the employer’s positions? Can your supervisors identify union authorization cards? Do they understand their significance? Can they lawfully explain what a union authorization card really means to employees who may ask? And can they explain why a card may not do what the union says it does?

Employers should also examine their employee engagement efforts to make sure issues don’t arise that may give union organizers an opportunity to find a sympathetic ear or to get a foot in the door. Knowing and engaging your employees to identify and resolve employment issues is not only good practice, but it can also give employers a crucial leg up in identifying and addressing potential union organizing threats under the NLRB’s new compressed timeframe.

If you have any questions on this article or the NLRB in general, please contact the authors of this article or any of the attorneys in Miller Johnson’s Labor and Employment group. We are also available for training sessions.