NLRB Issues Final Rule on Ambush Union Elections

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update

On December 12, 2014, the National Labor Relations Board (NLRB) confirmed the long-standing speculation of many by finalizing the new rules governing the procedures of union representation elections (the Final Rule). The proposal for new rules has been pending since 2012, with changes included and then removed. As anticipated, the Final Rule was issued shortly after November's mid-term elections.

The Final Rule will dramatically shorten the period of time that employers and employees will have to prepare for a union election after receiving an election petition. Typically, under current rules, an election will take place between 38-45 days after a petition is filed. Under the new rules, this will be reduced to as few as 10 days. Other changes are also included in the Final Rule, such as limiting an employer's ability to appeal various issues until after an election is conducted (including voter eligibility), as well as requiring that employers must disclose employees' contact information, including phone numbers and email addresses, to the union seeking representation of those employees shortly after the petition is filed (two business days).

The Final Rule becomes effective April 15, 2015, and it is anticipated there will be a rise in union election petition filings after that date, as well as an increase in the union success rate, as unprepared employers fall victim to these "quickie elections." In addition, there may be legal challenges to these rules; however, the Final Rule could well remain in effect during the months or even years that any litigation will require. Employers should proactively familiarize themselves with these new shortened procedures as any election petition received after that time will be voted upon with the new shortened timeframes.

In addition, you should:

  1. Identify your supervisors now and document those decisions properly;
  2. Train supervisors on how to respond legally to employee inquiries/union tactics;
  3. Prepare some potential campaign material;
  4. Train management in positive employee relations and how to be an effective leader;
  5. Look for areas of concern or vulnerability now and take proactive steps to rectify the situation; and
  6. Review and revise all handbooks to be in compliance with current NLRB trends.