Tuesday, April 7, 2015

NLRB issues official guidance on “ambush election” rules

One week from today, the NLRB’s “ambush election” rules take effect. Yesterday, the Board published its official guidance discussing how it will process representation cases going forward.

According to the Board, these new rules do not “establish new timeframes for conducting elections or issuing decisions.” Yet even the quickest reading of the guidance memo reveals the opposite. Timeframes for the filing of briefs, the holding of hearings, and other election-related events are accelerated. For example, employers will have only two business days after the approval of an election agreement to provide a voter list to the union (accelerated from seven days). Five days may not seem like much, but, when you add five days here, and five days there, and a few more days elsewhere, you end up with an election process that is extraordinarily shortened, limiting an employer’s ability to effectively mount a campaign to explain its position to its employees.

Curiously absent from the guidance, however, is a target deadline for the holding of the election. Instead, the Board says the following:

The Board has said that the election should be held at the earliest date practicable consistent with the Board’s rules. At this point, because there is no experience processing cases under the final rule, it is not possible to express a standard in terms of a specific number of days from the filing of the petition to the election. Rather, I expect that regional directors will exercise their discretion and approve agreements where the date agreed upon by the parties is reasonably close to the date when an election would likely be held if it were directed.

Employers, however, should not take too much solace from this omission. The Board is on record as saying that elections under the new rules should be held within 10 days. I have no reason to believe that “the earliest date practicable” is anything different than a target of 10 days.

The guidance memo is a necessary read for all employers. You can download it here [pdf].