UPDATE: NLRB AMBUSH ELECTION RULES TAKE EFFECT APRIL 14, 2015

On Tuesday, April 14, 2015, the National Labor Relations Board’s (“NLRB”) new rules regarding union representation cases will take effect. These rules were adopted to reduce the amount of time between the filing of a petition and a union election. The NLRB champions the rule changes as modernizing the union election process, but the real effect of these adopted rules is employers will have less time to educate its employees on the pros and cons of unionization after a petition is filed. The NLRB estimates that under these new rules, the entire union election process will take 17-25 days instead of 42 days under the current election rules. As of Tuesday, April 14, 2015, the NLRB will require employers to adhere the following NLRB union election procedures:

  • Within 2 business days after service of the notice of the pre-election hearing, the employer is required to post a Notice of Petition for Election in conspicuous places, including all places where notices to employees are customarily posted. The employer must also distribute the notice electronically if the employer customarily communicates with its employees electronically.
  • Regional Director will schedule the pre-election hearing 8 days from the notice of hearing.
  • The employer will be required to file a Statement of Position form within 7 days from the date of service of the notice the pre-election hearing. The Statement of Position must be filed by noon on the date its due. The employer will be required to identify any issues it wishes to litigate at the hearing.
  • In the Statement of Position, the employer will be required to include an alphabetized electronic list of employees with the full names, work locations, shifts, and job of all individuals in the proposed unit and, if the employer claims the unit is inappropriate, a separate list of the full names, work locations, shifts, and job classifications of all individuals the employer claims should be added or excluded to the proposed unit in order to make it an appropriate unit.
  • In the Statement of Position, the employer will also be required to separately indicate any individuals on the list whom it believes must be excluded from the proposed unit. The employer must also list those individuals whose eligibility to vote they intend to contest at the pre-election hearing and the basis for each such contention. The employer will be required to provide the voter list to the Regional Director and the union within 2 business days after the Regional Director’s approval of the election agreement or decision directing an election.
  • The voter list will be required to be filed with the NLRB and the union in a table in Microsoft word or a file that is compatible with Microsoft word.
  • Post-election procedures have also been altered by the NLRB’s new rules. Objections to an election must be filed within 7 days accompanied by a written offer of proof identifying each witness and summarizing the witness’s testimony.

With these sweeping changes to the procedural aspect of NLRB union elections, employers are required to be familiar with the new rules, the timelines, and be able to act quickly in the event a petition is filed. Due to the shortened time frame between the filing of a perfected petition and an election, employers should be proactive in educating their employees on the issue of unionization. Employers should also proactively prepare their arguments concerning appropriate bargaining units before an actual petition is filed. If employers are not proactive, by the time a petition is filed, it may be too late.

The St. Louis labor attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including NLRB union elections, for almost sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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