Ambush Elections: What They Really Look Like Now

ambush election examplesOn April 14, 2015, the National Labor Relations Board (NLRB) Representation Case-Procedures Rule (The Rule) became effective and has been subsequently challenged and upheld in a number of court cases. Referred to as the Ambush (or “Expedited”) Elections rule, the new procedures make it easier for unions to hold an election because employers get less time to appropriately respond to unionization petitions. The ambush rule allows a “quickie election” and imposes stringent employer responses that must be made within a short period of time.

Understanding “The Rule”

In summary, there are several requirements of The Rule specifically designed to make it easier and quicker for your employees to unionize. One is that unions can now electronically file petitions with the NLRB and serve them on employers the same way. The employer must post and distribute the NLRB election notice to employees by email.

Of real concern is that a pre-election hearing is scheduled a short eight days after the union petition is filed, and employers automatically waive issues not put into writing in the pre-hearing position statement. The petition statement must identify all bargaining unit employees by name, shift, work location and job classification. One day before the pre-election hearing opens, the employer must provide information that includes available personal email addresses, available personal and cell phone numbers, and home addresses.

The Rule in Practice

In June 2015, one company decided to run a “quickie campaign” rather than challenge the new NLRB rules. This case offers a real insight into what employers need to be prepared to do in order to avoid unionization. The employer had asked the NLRB for 28 days to an election from the petition date. The union wanted 14 days. The employer protested to the NLRB and got 27 days. The net effect was the employer had to run a campaign over 13 workdays once weekends, the day of petition filing and the day of the election were discounted.

Fortunately, the company had a practice of conducting regular labor relations training with supervisors on union proofing the company by avoiding unfair labor practices. Supervisors already knew how to talk to employees about unionization, so over the 13 days they sent daily messages to employees about all facets of unionization — union dues, collective bargaining, impact on the employer and so on. Without ongoing supervisor training, it is unlikely the company would have been successful in its campaign to remain union-free because of the severe time constraints.

In the September 2015 Danbury Hospital case, the employer made a sincere attempt to meet the information disclosure obligations of the NLRB rule. In this case, 700 out of 866 people voted in an NLRB election. The union lost and filed an objection. The basis for the objection was that the hospital had provided email addresses and phone numbers for 94 percent of the eligible voters but only used the Lawson database. The union said there were other sources of employee records, such as unit records, that could have provided more employee information, so filed an objection. The NLRB ordered a new election, supporting the union’s claim the hospital did not make enough of an effort to supply full employee information as required by the Ambush Rule.

Union avoidance today has never been more complex, as the NLRB makes it easier with each new rule for employees to unionize and more difficult for employers to prepare and present a campaign to keep the union out. The Rule intentionally speeds up the petition and election process, clearly in support of unionization. If you are not fully informed at all times on the latest NLRB rulings and their interpretations, you are likely to be unable to keep unions out.

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Union Proof the Workplace

The key to keeping the union out is to union proof the workplace, which requires a strong employee communication system and advance preparation for responding to an Ambush Election. One important step is to identify and train supervisors on recognizing and responding to union activities. To offset the shortened response time in the NLRB rule, you need to develop effective anti-union campaign material ahead of time and not wait for a petition filing. Also critical is developing an effective employee communication system and educating employees on the employer’s position on unionization.

It is also important to review employee handbooks and personnel policies and ensure they are union proofed. Finally, prepare in advance outlines of your NLRB position statement and other response material as required by the regulations to shorten the time it takes to respond, in the event an election petition is filed. Take these steps, and you will be much better prepared should you get ambushed.