Today, the National Labor Relations Board (NLRB) issued a final representation-case procedures rule. This rule follows yesterday’s decision in Purple Communications Inc., where the NLRB held that employees may use their company’s e-mail system for union organizing activities. The final rule becomes effective April 14, 2015.

The changes in the final rule include the so-called “ambush election rule,” which allows employees and unions to significantly shorten the time between filing a petition and a union representation election. The new rule requires elections to occur as soon as practicable, which commentators have suggested may be as early as 10 to 21 days after the filing of a petition.

The new rule also greatly limits pre-election unit challenges by an employer. For example:

  • Pre-election hearings may be scheduled as early as eight days after the petition is filed.
  • Employers must submit a detailed statement that outlines the disputed issues the day before the hearing, which will limit the issues in any subsequent litigation, and includes preliminary information regarding employees in the unit, which must be circulated to the union.
  • Issues of eligibility and inclusion in the unit will typically be deferred until after the election.
  • The rule eliminates the opportunity for briefing after the hearing, except in rare instances, requiring the parties to present their arguments orally before the close of the hearing.
  • An employer request for NLRB review of the Regional Director’s decision will not stay the election absent an NLRB order.

The final rule also contains several provisions the NLRB terms “modernizations,” including requiring employers to provide unions with the personal e-mail addresses and telephone numbers of all workers eligible to vote and permitting parties to file documents such as petitions electronically. In addition, employers must provide the Excelsior list of voter information to the union within two business days of the Regional Director’s approval or decision granting an election, rather than the prior rule’s seven days.

The truncated time frame between filing a petition and a union representation election, in conjunction with the other revisions, significantly hamstrings an employer’s ability to communicate with its employees regarding unionization and will aid unions in their organizing efforts. Employers should take steps to assess their vulnerability to union organizing efforts, train supervisors to recognize and respond to potential union campaign activities, and develop a flexible campaign plan to be implemented once a petition is filed.

Ballard Spahr's Labor and Employment Group regularly assists employers with union avoidance measures and responding to organizing campaigns.


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