On December 22, 2011, the National Labor Relations Board (“Board”) adopted a final rule which significantly modified, in certain respects, the procedure for processing representation petitions. The “ambush election” rule, which represents a scaled back version of a more comprehensive overhaul of election procedures proposed by the Board in June 2011, went into effect on April 30, 2012 and will apply to all representation cases filed on or after that date.

In proposing the new rule, Board Chairman Mark Gaston Pearce explained that the amendments were not likely to impact the majority of NLRB-supervised elections as: “about 90 percent [of NLRB-supervised elections] are held by agreement of the parties…[and t]he amendments…would not affect those agreed-to elections.”

Under the new rule, which seeks to reduce unnecessary litigation and enable expeditious resolution of questions concerning representation, the Board:

  • Focused pre-election hearings on only those issues relevant to determining if there is a question concerning representation;
  • Provided hearing officers with the authority to limit the presentation of evidence;
  • Provided hearing officers with discretion on whether to allow for post-hearing briefs after pre-election hearings;
  • Eliminated pre-election appeals to the Board and consolidating appeals into a single, post-election review request;
  • Made Board review of post-election regional determinations discretionary;
  • Eliminated duplicative regulations;
  • Eliminated the practice of not scheduling an election for approximately 25 days after a decision and direction.

Although the new rule does not specify how soon a pre-election hearing should be held, most Regions issue the Notice of Representation Hearing on the day the petition is filed and schedule the initial hearing for 7-10 days thereafter. Thus, employers are likely to only have a seven-day window under the new rule in which to prepare for a pre-election hearing once they have received notice. Opponents of the rule point to the increase in union control over the timing of election hearings and their ability to “ambush” the employer’s ability to educate their employees about the disadvantages of unionization.

With the new rule in effect, employers should take immediate steps to increase awareness of workplace grievances and employee unrest, both of which could result in a union organizing campaign, and to make sure that they are adequately training supervisors on how to lawfully respond once an organizing campaign has been initiated. In addition, employers are advised to take a second look at wage rates, benefits packages and employment policies to ensure that they are both fair and competitive.

For more detailed information, the Acting General Counsel issued a guidance memorandum on April 26, 2012 explaining how Regions should implement the new rule. Likewise, the General Counsel’s office has issued a set of NLRB Frequently Asked Questions, which provide a quick and easy explanation of the revised rule and the procedures for its implementation.