STATUS: Final Rule
EFFECTIVE DATE: April 30, 2012

Overview:
In December 2011, the National Labor Relations Board (NLRB) issued a controversial final rule overhauling its procedures for union representation elections. Commonly known as the “ambush” elections rule, the changes are effective on April 30, 2012.

Under the final rule, the amount of time between a union filing a representation petition and an election taking place is reduced from the current average of around 40 days to as few as 17 to 20. The NLRB achieved this drastic reduction in time primarily by:

• Combining pre- and post-election appeals.
• Truncating pre- and post-hearing procedures.
• Limiting the types of issues an employer can raise at a pre-election hearing. (Determining which employees are considered supervisors, and which employees constitute a potential bargaining “unit” are no longer permitted before the election takes place.)

Although the NLRB’s final rule requires no immediate action by employers unless they are involved in a union representation election, the shortened time period for union elections will place a premium on rapid response by employers to union organizing activity. Employers are encouraged to speak with their labor counsel now about putting in place a rapid response plan for management because they may not get a second chance to prepare for sudden union organizing activity.

Next Steps:
The ABC-led Coalition for a Democratic Workplace (CDW) has filed a legal challenge to block the NLRB’s rule. The case is pending in U.S. District Court for the District of Columbia, and a ruling is expected any day. We maintain the rule denies employers their rights to due process and pre-election communication with their employees. In turn, employees are denied their right to balanced information. The NLRB’s rule encourages the kind of back-door union organizing sought through the deceptively named Employee Free Choice Act (EFCA).

Be advised, this final rule is only a small part of a larger proposal issued in June 2011 that called for even quicker union representation elections and more infringement on employer and employee rights. The NLRB’s current chairman has indicated that he plans to eventually implement the entire proposal.

ABC will continue to keep members informed about any legal challenges or subsequent rulemakings that deal with procedures for union representation elections.

Additional Resources:

• NLRB Final Rule on Representation-Case Procedures
• NLRB Frequently Asked Questions on Final Rule
• NLRB Explanation of Election Changes in Final Rule
• NLRB Guidance Memo on Final Rule