As we’ve reported in this blog before, the National Labor Relations Board adopted a final rule on December 15, 2014, which will likely reduce the time between the filing of a union election petition and the representation election—the “ambush election rule.”  The new rule goes into effect today, April 14, 2015.  The new rule will apply to all representation petitions filed on or after the effective date.  Representation cases filed before today will continue to use the old rules.

Since the Board adopted the new rule back in December, there has been a flurry of activity by both the Board and those who wish to prevent its implementation.  As we reported back in January, several business groups filed suit in the federal District Court for the District of Columbia, alleging that the Board exceeded its authority and violated the First and Fifth Amendments to the Constitution in adopting the new rule.  Shortly thereafter, the Associated Builders and Contractors of Texas filed suit in the District Court for the Western District of Texas, making nearly identical allegations: that the Board exceeded its authority under the National Labor Relations Act and acted in an arbitrary and capricious manner in adopting the rule.  Both lawsuits requested that the rule be vacated and set aside.

Undeterred, the Board has issued information and guidance to explain the new rule and the changes it makes from the former rules.  The Board issued a fact sheet, which includes a link to a comparison table that lists the differences between the new rule and the old.  Last week, the Board’s General Counsel issued a 36-page Guidance Memorandum, explaining how representation cases now will be processed in light of the new rule.

As a reminder, some of the more important changes under the rule are:

• Employers must now provide a list of prospective voters before the regional director directs an election or approves an election agreement.
• Employers may not get to contest the eligibility of voters before the election, and instead will have to wait until after the election to contest voter eligibility.
• There will no longer be an automatic 25-day stay of an election to allow the Board to consider a request to review the regional director’s decision to hold an election.
• The voter list that must be provided now must be provided within two business days of the regional director’s approval of an election—not seven—and must include not only the voters’ names and addresses, but also their personal phone numbers and e-mail addresses.
• Post-election review by the Board will now be at the Board’s discretion, rather than mandatory.

Of note, in the Guidance Memorandum, the Board takes issue with the characterization of the new rule as providing for “ambush” elections. The General Counsel states that “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.” Nevertheless, although employers may not have felt the full effect of the rule yet, the fact remains that elections can now be held in as little as 14 days after the petition is filed, while the median time was 42 days after the petition was filed under the old procedures.

Mark Jeffries focuses his practice in the area of labor and employment law. He has represented employers in wrongful discharge and discrimination cases in state and federal court, as well as before the West Virginia Human Rights Commission and the U.S. Equal Opportunity Commission.
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