The National Labor Relations Board's (NLRB) “Ambush Election” rules issued in December 2011 take effect today and will apply to all representation petitions filed on or after April 30, 2012.  Meanwhile, the acting General Counsel for the NLRB issued a guidance memorandum and frequently asked questions (FAQs) addressing the new rules to assist both the NLRB and employers in understanding their effect.  

Although the new rules do not explicitly establish new time frames for conducting hearings or elections, time frames will likely be cut in half once the NLRB has developed some experience and expertise in processing representation petitions under the new rules.  For example, the current practice is to hold NLRB conducted elections within approximately 42 days (6 weeks) from the petition filing.  Under the new rules and guidance issued by the NLRB’s General Counsel, union-free employers served with a Notice of Representation Hearing (NOH) can expect that the normal 40 day time frame will be incrementally shortened to approximately 20 days.  Continue reading for highlights from the new rule, memorandum and FAQs.

Highlights of the Memorandum and FAQs

  • The revised rules do not specify how soon a pre-election hearing must be held.  The Memorandum states that the NLRB should issue a NOH the same day that the petition is filed and schedule a hearing 7 days from the date of issuance.  This gives regions some flexibility to address postponement requests and still meet outstanding instructions that hearings be conducted within 14 days of the petition filing.
  • Requests for postponement of a pre-election hearing will not be granted unless good and sufficient grounds are shown.  Absent extraordinary circumstances, requests for postponement of a pre-election hearing to a date more than 14 days after the date the petition was filed will not be granted.  Additionally, the NLRB can condition requests for postponement on the parties' agreement to participate in a pre-hearing conference, not to seek extensions of time to file briefs, and/or to enter into stipulations on matters not in dispute.
  • Hearing officers are no longer required to permit parties to fully litigate all eligibility issues before the direction of an election, meaning parties no longer have a right to litigate an individuals inclusion in a bargaining unit or eligibility before individuals cast a vote in an election.
  • Only when more than 10% of the unit is in dispute should a hearing officer make a pre-election determination of whether individuals in a bargaining unit are ineligible because their “employee” status as defined by the Act or whether individuals fall within the terms used to describe the unit.  Otherwise, these issues may be deferred for post-election determination.
  • Supervisory status of individuals generally will not be litigated prior to the election even if the parties assert that pro-union conduct by a supervisor tainted the petition or the showing of interest. 
  • Similarly, questions regarding the managerial status of employees generally will be deferred until after the election unless the petitioned-for unit or a major portion of that unit is allegedly managerial; then a hearing must be held to ascertain managerial employee status before the election.
  • Hearing officers have significantly expanded discretion regarding whether to allow post-hearing briefs, including when briefs must be filed and what the briefs should address. 
  • If there are no objections or determinative challenged ballots, requests for review must be filed within 14 days after the tally of ballots has been prepared and made available to the parties.  If there are determinative challenged ballots and/or objections are filed, requests for review of pre-election decisions must be filed within 14 days after the regional director's decision on challenged ballots, on objections, or both.  The request for review of the pre-election decision may be combined with a request for review of the decision on objections/challenged ballots.
  • Where individuals are permitted to vote subject to challenge, the Notice of Election will include the following language:  “OTHERS PERMITTED TO VOTE: At this time, no decision has been made regarding whether [Classifications] are included in, or excluded from, the bargaining unit, and individuals in these classifications may vote in the election but their ballots shall be challenged since their eligibility has not been resolved. The eligibility or inclusion of these individuals will be resolved, if necessary, following the election.”
  • All exceptions will be decided by the regional director instead of the NLRB.  Then, the NLRB may grant or deny requests for review, and if the NLRB denies the request for review, the denial is summary affirmation of the actions of the regional director.

Employers' Bottom Line: 

The new rules likely will result in a shortened time frame for conducting hearings and elections.  For employers who either anticipate union activity or who want to fend off potential union activity, the time to educate employees about unions is beforea petition is filed.  After a petition is filed, the limited timeframe (approximately 20 days v. 40 days) until an election is held will make it difficult for employers to effectively conduct a campaign to educate its employees about the pros and cons of having a union in order to allow employees to make an informed decision.

Note:  The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a motion for injunction against the NLRB's Ambush Rule; however the court has not yet ruled or issued an injunction.  Some anticipate a ruling in May, but meanwhile the NLRB will move forward with implementing its new procedures in processing representation petitions.