NLRB Adopts New Ambush Rule

In a significant change for employers facing a union representation election, the National Labor Relations Board (“NLRB” or “Board”) has adopted its “final rule” amending representation case procedures.  These procedures resolve certain existing representation disputes and provide detailed guidance on the NLRB’s representation procedures, from the petition being filed to post-election issues.

Under the previous procedures, an employee or union organizer had to file a hard or faxed copy of a petition for certification of the union.  Then, an employer had seven (7) days to provide the union representative with an excelsior list (a list containing the names and addresses of all employees who could fall into the class of employees the union sought to organize, referred to as the bargaining unit).  Meanwhile, the Board agent would consult with the employer and the union to set an election date within 42 days.  The non-petitioning party would typically choose the latest possible date.

Now, the Regional Offices of the NLRB will accept petitions electronically, and employers are required to provide the Union with an expanded excelsior list (containing not just employee names and addresses but also personal telephone numbers and email addresses) within two (2) days of the petition being filed.  Also, in light of a recent ruling (the Purple Communications decision), employees can conduct organizing efforts using their employer-provided email systems.  Most notably, the Regional Director will schedule the election for the earliest date practicable. This shortened period from petition filing to election has led to these amended procedures being known as the “ambush rule.”

The new representation case procedures establish several significant changes:

  • The Regional Director will set the election for the earliest date practicable;
  • Petitions and other documents can be filed electronically;
  • Representation petitions must be served by the petitioner;
  • The petitioner must provide evidence at the same time the petition is filed, including a showing of interest (a representation of 30% or more of the bargaining unit in support of the petition);
  • The non-petitioning party is required to state a position by responding to the petition in writing seven (7) days after the petition is filed;
  • Employers that customarily communicate with employees electronically must electronically provide the notice of election.

The new representation case procedures present a higher likelihood of successful representation petitions.  Thus, employers must adequately prepare for the possibility of organizing activity within their workforces.  Such preparation includes working with labor law attorneys to develop management training and counseling and implementing and enforcing best practices to avoid unionization.

The new rules were published this week and take effect on April 14, 2015.