• NLRB Issues Guidance as "Ambush Election" Procedures Become Effective
  • May 2, 2012 | Author: Daniel B. Gilmore
  • Law Firm: Chambliss, Bahner & Stophel, P.C. - Chattanooga Office
  • On April 26, the National Labor Relations Board's Acting General Counsel (AGC) issued comprehensive guidance to the Board's regional offices outlining how its new representation case procedures will be implemented. http://www.nlrb.gov/news/acting-general-counsel-issues-guidance-regions-implementing-new-representation-case-procedures.

    The revised case procedures are troubling for non-union employers because they are intended to significantly shorten the timeframe for conducting contested representation elections. The weeks between the filing of a petition by a union seeking representation of a group of employees and the holding of the secret ballot election is very often the only time an employer has to educate its employees and to counter information the union has typically provided over an extended period of time. As a result, the shorter the "campaign" period, the greater the challenge faced by an employer opposed to the representation of its employees.

    The new procedures take effect on April 30, 2012. The AGC emphasized that the guidance, "is intended to explain, as clearly as possible, how representation cases will be processed from beginning to end, incorporating to the extent necessary, the new rules and procedures that remain unchanged." The AGC also issued answers to a set of Frequently Asked Questions.

    In December of last year, the Board adopted the new procedures, http://www.nlrb.gov/news/board-adopts-amendments-election-case-procedures, with the following stated objectives:

    • Focusing pre-election hearings on those issues relevant to determining if there is a question concerning representation;
    • Providing for post-hearing briefs after pre-election hearings only when it will assist decision makers;
    • Reducing piecemeal appeals to the Board by consolidating requests for Board review of regional directors' pre- and post-election determinations into a single, post-election request;
    • Making Board review of post-election regional determinations discretionary; and
    • Eliminating duplicative regulations.

    With the failure of the Employee Free Choice Act (which would have eliminated secret ballot elections altogether), employers see these revisions as an attempt by the Board to hasten the process of conducting representation elections.  By narrowing the issues to be addressed at pre-election hearings, by making post-hearing briefs discretionary, and by delaying appeals of pre-election determinations, elections will be held more quickly and before many employers will have sufficient opportunity to inform their employees regarding the implications of union representation.  In an apparent attempt to partially address these concerns, the AGC concluded his memorandum with the following statement:

    It is my sincere hope that the new Board rules and this guideline memorandum will save time and resources for both Agency staff and the parties who appear before the Board. ... Finally, I intend to continually reevaluate the procedures set forth above to ensure they are achieving the goals of reducing unnecessary litigation and more expeditiously resolving questions concerning representation. In carrying out this reevaluation, I assure you that I will solicit the views of the staff and the public and that their suggestions will be the basis of future guidance to the field and the public as warranted.

    We will continue to keep you informed as the AGC solicits such views and issues further guidance impacting how future employee representation will be determined.