Training

Be Prepared for an ‘Ambush’

By Staff Report

Dec. 29, 2015

In April 2015, the National Labor Relations Board implemented a controversial new union election rule shortening the period between filing a union petition with the NLRB and the election. Pundits have dubbed it the “Ambush Rule,” because it potentiallyenables unions to take advantage of unsuspecting or unprepared employers.

The rule has indeed produced shortened campaigns, faster elections and loss of rights to appeal NLRB decisions. However, NLRB data show that the streamlined election process has not yet resulted in a significant increase in the rate of unionization.

Highlights of the Ambush Rule include:Legal Ambush January 2016

Unions can file petitions with the NLRB and serve them on employers electronically, which speeds up the process.

The employer is now required to post and distribute the NLRB’s election notice to its employees by email.

A hearing concerning the sufficiency of a petition and related issues is now scheduled eight days after the union files the petition.

Employers are required to file pre-hearing position statements. Any issue not raised by the employer in writing is waived.

The petition statement must identify all employees in the bargaining unit by name, work location, shift and job classification, providing critical information to the union.

Elections are required to be held “at the earliest date practicable” after the regional director issues a decision and direction of election.

Under prior NLRB election rules, unions were required to wait a minimum of 25 days between the petition and election, but the median period was 38 days. Under the new rule, there is no time frame specified, but the NLRB reports that the median delay between petition and election is 23 days. This leaves employers with 40 percent less time to educate employees about the negative aspects of unionization before the employees are required to vote in an election.

The compressed election cycle is believed by many to give a tactical advantage to the unions. According to NLRB spokeswoman Jessica Kahanek, for the month prior to April 14, 2015 (the effective date of the new rule), unions filed 212 petitions. For the month after that date, unions filed 280 petitions — a 32 percent increase and an apparent preference to proceed under the new rule.

While only a few hundred elections have been conducted under the new rule, NLRB data suggests that, at leastcurrently, unions are not prevailing in elections at a greater rate than before the adoption of the rule. For June and July 2015, 277 representation election petitions were held (with the petition filed by the union or the employees), with the unions prevailing in 191, a 69 percent success rate. For June and July 2014, the unions prevailed in 145 of 214 elections based on representation election petitions, a 68 percent success rate. For the same period in 2013, unions prevailed in 66 percent of 208 elections. Thus, while unionization rates appear to be slightly higher overall, there is no evidence that this is the result of the Ambush Rule.

By contrast, employees and employers could be experiencing increased success filing decertification petitions to reverse unionization. From May 2015 through July 2015, 21 decertification elections were conducted under the old rules, in which unions prevailed 16 times, a 76 percent success rate.

In the same time period, 18 decertification elections were conducted under the Ambush Rule, with unions prevailing five times, a 28 percent success rate. These numbers may be skewed by the small sample size, but for the same three-month period from 2012 through 2014, unions prevailed in 34 percent of decertification elections, 6 percentage points higher than after the adoption of the Ambush Rule. Thus, to the extent unions may “ambush” employers under the new rule, they may be subject to ambush as well.

What should employers do?

Update company policies to deter salting, prohibit solicitation and minimize access from outsiders to the employer’s facilities.

Educate managers about common warning signs of union activity.

Work with counsel to establish legal and public relations quick-response plans, and to train company managers to implement these plans.

Proactively create union avoidance strategies, including implementation of legal prevention, detection and response tactics.

Conduct audits and policy reviews to ensure employees are treated fairly, compensated with competitive pay and clearly informed about company rules and policies.

Ensure transparency and open channels of communication in all employer-employee relationships.

Educate managers and employees about the benefits of the company remaining an “open shop.”

Because employers must file position statements within eight days of receiving notice of the petition from the NLRB, employers must immediately communicate the need for a response to their counsel. Officers and managers should be trained at least annually concerning the legal do’s and don’ts of union campaigns, including how to educate employees about what it means to sign a union card, and the probable costs and negative effects of unionization. In coordination with counsel, employers should quickly deploy trusted managers and supervisors to mount campaigns to prepare for the election.

Based on the early data, the Ambush Rule appears to be a double-edged sword that can be wielded effectively by unions and employers alike. This is good news for employers, which have several distinct advantages over unions, including daily access to their employees beginning well before a union petition is ever filed.

For employers who remain diligent, prepared and committed to sound policy, the perceived threat of the Ambush Rule can be mitigated.

 

Annette A. Idalski is a partner with the national law firm Chamberlain Hrdlicka in Atlanta and is the chair of the firm’s Employment and Labor Group. F. Beau Howardis a senior associate at Chamberlain Hrdlicka. To comment, email editors@workforce.com.

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