As we previously reported, the National Labor Relations Board (NLRB, or Board) adopted a final rule amending its representation–case procedures that will shift the litigation of most disputes until after the election, speeding up elections and limiting the opportunity for an employer to run an effective campaign. Due to the condensed timeframe between receipt of a Notice of Petition from the NLRB and the date of an election, these amendments are referred to as the NLRB’s “ambush election” rules. Despite both houses of Congress voting overwhelmingly to block these amendments from taking effect, thanks to a presidential veto the NLRB ambush election rules take effect Tuesday, April 14, 2015.

CONGRESSIONAL REVIEW ACT
Republicans in Congress passed legislation under the seldom-used Congressional Review Act in an attempt to block the new ambush election rules from taking effect:

• the Senate passed the resolution 53-46 on March 4, 2015; and
• the House of Representatives voted 232-186 to adopt the resolution on March 19, 2015.

Not surprisingly, on March 31, 2015, President Obama vetoed this legislation, thereby clearing the way for the ambush election rules to take effect Tuesday, April 14, 2015. 

FEDERAL COURT LITIGATION
On January 5, 2015, a coalition of employer groups, including the National Association of Manufacturers, National Retail Federation, U.S. Chamber of Commerce, Coalition for a Democratic Workplace, and the Society for Human Resource Management, filed an action in the United States District Court for the District of Columbia seeking to enjoin the new NLRB election rules from taking effect on April 14, 2015 (Chamber of Commerce, et. al v. NLRB). The coalition filed a motion for summary judgment on February 4, 2015. The NLRB filed its opposition to the employer groups’ motion for summary judgment on March 6, 2015. Reply briefs were due from the employer groups on March 25, 2015 and from the NLRB on April 1, 2015. The absence of a decision from the court prior to the effective date of the amended rules does not necessarily mean that this challenge by the employer groups will not be successful, but experts are not expecting a repeat of the miracles of 2012 through 2014, when employers had strong arguments regarding the existence of a quorum at the NLRB.

NEW NLRB AMBUSH ELECTION RULES
The new NLRB ambush election rules were adopted on December 12, 2014 by a vote of three in favor to two against (3-2): Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer voted to adopt the regulation, while Board Members Philip A. Miscimarra and Harry I. Johnson III dissented. NLRB Chairman Pearce stated that he believes that these amendments will “ensure that its representation process remains a model of fairness and efficiency for all.” However, he ignores the fact that the new ambush election rules unnecessarily shorten the time needed for employees to understand relevant issues, compelling them to “vote now, understand later.” In their dissent, members Miscimarra and Johnson made the following observation:

The Final Rule has become the Mount Everest of regulations: Massive in scale and unforgiving in its effect. Very few people will have the endurance to read the Final Rule in its entirety.

This new rule is substantially similar to the new election rule adopted by the NLRB in 2011. However, at that time, the Board was operating with only three members, and the Republican member of the NLRB was not present on the day that the rule was adopted. Therefore, that rule was ultimately invalidated in court as the Board did not have a quorum when it voted to adopt that regulation. As all five members of the Board voted on this regulation, there will be no dispute over quorum this time.

The most important changes in the election process stemming from this new rule are summarized as follows:

I. Employers will have just seven calendar days to submit a Position Statement.

The ambush election rules greatly accelerate all deadlines associated with representation elections, but, most significantly, the rules impose an obligation on employers to submit a comprehensive written position statement just seven calendar days after the NLRB serves Notice of a Representation Petition filed by a union.

II. Pre-Election Hearing

Under the current rules, an employer may insist on a pre-election hearing over certain voter eligibility and inclusion issues raised by both parties, and the pre-election hearing process currently provides employers with crucial additional time between the filing of the petition and the date of the election. Under the new NLRB ambush election rules, many eligibility and inclusion issues will not need to be resolved prior to holding an election. Most eligibility and inclusion disputes will be now be deferred until a post-election hearing.

III. No Post-Hearing Briefs

Under existing procedures, an employer may further delay an order from the Regional Director directing an election by requesting the opportunity to file a brief with the Regional Director within seven days of the conclusion of a pre-election hearing. An employer may also request that the deadline be extended by 14 or more days. Under the new NLRB ambush election rules, a party will generally only be provided an opportunity to make its argument in an oral closing statement before the close of the hearing. Written briefs will be allowed, sparingly, at the sole discretion of the Regional Director. The emphasis is no longer on arriving at a correct decision, the emphasis is now on making a quick decision so that the election may be expedited.

IV. Appeals Postponed

Currently, a party who wishes to appeal the ruling of a Regional Director in a pre-election decision must make such an appeal to the Board before an election ever takes place, allowing the NLRB an opportunity to decide key bargaining unit issues which may impact the outcome of an election. The new NLRB ambush election rules postpone the time for requesting review of the Regional Director’s decision until after the election, empowering the Regional Director at the expense of NLRB members.

V. No Stay of Election

At present, if either party files a request for review of the Regional Director’s decision, an election may be delayed as long as 30 days to allow the Board to consider such a request. With the elimination of pre-election appeals, the new NLRB ambush election rule includes no provision for an automatic stay of an election pending an appeal to the NLRB.

VI. Employee Privacy 

The NLRB ambush election rules impose new mandatory disclosure requirements, obligating employers to disclose personal contact information of unit employees, including all personal email addresses and cellular telephone numbers in the employer’s possession. Significantly, the new rule does not give employees the option to opt-out of being included in such disclosure.

VII. Technical Changes

The new NLRB ambush election rule allows for election petitions, election notices, and voter lists to be transmitted electronically, and allows NLRB regional offices to deliver notices and documents electronically, rather than by mail, further accelerating the process. If this were the only amendment it would not be controversial, but as part of these other changes is designed to rush employees to an election. These changes become another way in which time to fully consider all information for making a decision on whether or not to vote for a union is greatly diminished.

EMPLOYERS MUST BE PREPARED FOR A PETITION
The single most important lesson that employers must take away from the amendments taking effect today, April 14, 2015, is that no employer can afford to wait until a petition is received from the NLRB to prepare for a union election:

• Employers must place a priority in maintaining a union-free environment in their workplace all of the time and run an on-going campaign of education and employee engagement.
• Employers must regularly provide supervisors and managers with training on effective supervision, recognition of the signs of organizing, and the dos and don’ts for supervisors during a union organizing effort (avoid threats, intimidation, promises, and surveillance).
• Employers must assess their vulnerability to union organization and start to address those issues.
• Employers must review the methods and regularity of communication with employees.
• Employers must review all of their employee benefits and policies and revise them if necessary.
• Employers must develop a rapid response plan in the event that they receive a Representation Petition from the NLRB, including establishing relationships with counsel knowledgeable and experienced in NLRB matters, as well as retaining other experts as necessary so that they may effectively operate under the shortened time periods in the new election procedures. Starting in April, the only way for an employer to avoid an ambush election will be to maintain a constant state of readiness.

If you have any questions about how this could impact your business, please contact:

• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Employment and Labor Practice Group.