April 12, 2015

National Labor Relations Board Releases “Ambush Elections” Rule Guidance

The National Labor Relations Board’s (NLRB) new “ambush elections” rule will take effect tomorrow, April 14, and last week the NLRB’s general counsel released a 36-page guidance memo for unions. 

MSCI and its allies in the Coalition for a Democratic Workplace are hopeful a district court in Washington, DC will stay the rule today or tomorrow, but MSCI still urges all its members to read the NLRB general counsel’s memo and other sources that outline the impact of this rule. 

According to the Hotel and Lodging Association, “The memo doesn’t say how long businesses will have to respond to petitions under the new rule. Instead, it says the NLRB will wait to establish a time frame until the board has ‘had some experience processing representation petitions under the final rule.’” The association also notes the memo does establish an eight-day time frame between the filing of a petition and a pre-election hearing. 

The NLRB has also created a chart comparing the new rule to the old version that will be helpful to employers as they deal with this rule. The National Law Review also outlines several of the changes:

  • Changes to filing and service requirements
  • A petitioner must serve on all named parties (1) a copy of the petition, (2) a description of the new procedures and (3) a statement of position form.
  • Any arguments not raised in the statement of position, which must be filed within seven days of petition filing, will be considered waived unless the party can show good cause for the omission.
  • An employer must provide a preliminary list of eligible voters, including detailed contact information, shortly after petition filing.
  • Changes to election agreement procedures
  1. Regional Directors now have discretion to determine what percentage of the unit may be deferred for later determination when a party asserts that a certain classification or group of employees should be included or excluded from the proposed bargaining unit.
  2. Hearing officers are instructed to determine whether any issues carry a presumption under NLRB precedent and identify the party that bears that burden.
  • Changes to hearing preparation procedures
  1. Issues such as jurisdiction, labor organization status, appropriate unit, employee status and eligibility formulas are to be addressed in a pre-hearing conference.
  • Changes to hearing procedures
  1. Unit scope issues (including multi-employer and multi-facility issues) must be determined before the election.
  2. Issues of individual eligibility or inclusion may be postponed until after the election, and those employees at issue should be permitted to vote subject to challenge.
  • Changes to election procedures
  1. Employers still must post election notices, but must also now distribute the notice electronically to employees if the employer typically communicates electronically with employees.
  2. The employer is now responsible for serving the voter eligibility list on the regional director and the other parties. The Regional Director will no longer serve the list.
  • Changes to post-election procedures
  1. A party must file objections within seven days after the tally of ballots and must specify the reason for each objection along with a written offer of proof identifying the witness(es) who would testify in support of the each objection and what they would say if they provided testimony.
  2. Board review of post-election disputes will now follow the same procedures as Board review of pre-election disputes.

The National Law Review says, “In light of the substantial changes in procedure that these rules bring, employers should review the new rules and the guidance memo and seek legal advice on the changes before getting involved in any new NLRB representation case after April 14.” Even though the NLRB general counsel says the new rule does not set a new timeline for union elections, analysts at Littler, an employment law firm, says it clearly will. (The Littler post also has a helpful explanation of the changes mandated by the rule.) Please contact MSCI Vice President of Accounting and Government Affairs Jonathan Kalkwarf with any questions you have about the “ambush elections” rule.