National Labor Relations Board (NLRB) Ambush Election Rules Unionizing a Workforce: What You Need to Know in 2015 and Beyond
In December 2014, the National Labor Relations Board (NLRB) implemented a final rule amending the agency’s representation-case procedures. The 'ambush election' rules, which govern the procedures for union representation elections, went into effect on April 14, 2015. The rule would dramatically shorten the duration between a union's filing of a petition to represent workers and the holding of a vote. This 'ambush' election rule would constrain employers seeking to respond to union organizer arguments; among other issues.
The new rules constitute the most sweeping regulatory change ever implemented by the Board. The rules will favor unions by enabling union elections in 10 to 21 days after the union requests a vote, and almost eliminate most employer rights during the representation case process. The new rules now make it easier for unions to organize all employers in any industry. Other changes include disputes over voter eligibility and bargaining unit inclusion or exclusion will be delayed until after an election, and pre-election hearings must start eight days after the date petition filing.
Union officials understandably favor the new rule since less than 7% of the US private sector work force is unionized. Many companies see the new rule as a license to muzzle work site opponents, unnecessary, and exceeding the board's authority.
Companies and unions will come to loggerheads over the new rules. Companies need to plan carefully to address the new rules and plan for compliance and mitigation of litigation risks.
- NRLB Ambush Election Rules
- Expedited Union Elections (10-21 Days)
- Voter Eligibility Issues Deferred
- Expedited Hearings and NLRB Position Statements
- Lists of Employees for the Union
- Countering Ambush Elections
West Virginia University College of Law
- Purposes of the Board’s New Election Rules
- Modernize Board Procedures
- Streamline Board Procedures
- Reduce Unnecessary Litigation
- Increase Transparency
- Standardize Board Processes
- Comparison Between Old and New Rules
Obermayer Rebmann Maxwell & Hippel LLP
- Employers now have half the amount of time to mount a union campaign to communicate with their workers before the election so the message needs to get condensed; Here’s how (examples);
- Pre-petition strategies are more important now than ever which include, handbook review, employee and management training, uniform grievance procedure, etc.
Conn Maciel Carey PLLC
Strategic measures employers can implement before and during the election process to effectively address the union challenge such as:
- Creating high-level management team to handle and respond to union organizing
- Anticipate appropriate bargaining units and collect relevant data regarding employees that will need to be disclosed on the Excelsior List
- Develop communication plans for managers, and conduct management training about how managers can and cannot respond to union organizing
- Develop system to track dates and legal obligations when served with a union petition
Kamer Zucker Abbott
To truly appreciate the impact of the NLRB’s new ambush election rules, employers need to view them in context with the NLRB’s other recent and pending legal changes such as:
- The NLRB’s new micro bargaining unit rule that allows unions to cherry pick small groups of employees it thinks it can organize, such as a single department or single job classification.
- The risk that the ambush election rules and ability to organize micro units could result in increased number of bargaining units represented by different unions.
- Unions use of micro-unit employees to organize their peers throughout the workplace in lieu of more traditional organizing methods.
- The NLRB’s newly expanded “joint employer” standard that will force more employers to the union bargaining table to negotiate over the terms and conditions of contingent workers and outsourced labor.
- The NLRB’s current efforts to revisit its current rule disallowing the inclusion of solely employed employees and jointly employed employees in the same bargaining unit absent consent of both employers and possibly return to its prior rule permitting the inclusion of both solely and jointly employed employees in the same unit without the consent of the employers.
Sobol & Sobol PC
- What to Look for in a Petition
- Confirm all required information is present
- Make sure to ask for a showing of interest check
- Preparation for an Election
- Make sure to comply with notice posting deadlines
- Timing of an Election
- Know the benefits of Stipulated Voting Agreements
- Make sure to know the trends in your region
- Hearings and Statements of Position
- NLRB Hearings - What are the changes?
- Make sure to know what to include
- Misuse of Voter List
- Recent trends
Who Should Attend:
- Labor and Employment Legal Counsel
- Regulatory and Policy Managers
- Other Related/Interested Professionals and Organizations
Anne Marie Lofaso is Professor of Law at West Virginia University College of Law, where she teaches labor and employment law, jurisprudence, and comparative labor law. She is also a Leadership Fellow in the Office of the Associate Vice President for Creative and Scholarly Activity for West Virginia University, a Research Scholar for the New York University Center for Labor and Employment, and the former Associate Dean (2011-2015). She spent ten years as an attorney with the National Labor Relations Board's Appellate and Supreme Court Branches. Prior to that, she worked as an associate for Milbank, Tweed, Hadley & McCloy's Business Reorganization Department and clerked for the Hon. James L. Oakes, U.S. Court of Appeals for the Second Circuit. She previously taught for six years as an adjunct professor at American University Washington College of Law and for one year at Oxford University. Dr. Lofaso is a prolific writer in the area of labor law and coal miner safety and has been published in numerous law reviews including the Harvard Law and Policy Review. Her textbook, Modern Labor Law in the Private and Public Sectors (Lexis Publishing with Harris, Slater, and Gregory) is the only labor textbook to treat both private and public-sector labor law. Her latest book, Mastering Labor Law (Carolina Academic Press with Secunda, Hirsch, and Slater) was published last summer. Professor Lofaso earned her A.B. from Harvard, magna cum laude, a J.D. from the University of Pennsylvania, where she studied labor law under the late Clyde Summers, and a D.Phil from Oxford, where she read law as a Fulbright Scholar. She is a four-time winner of her law school's outstanding faculty scholarship award, 2010 WVU Law professor of the year, 2012-13 WVU Foundation Award for Outstanding Teaching, and 2013-14 Benedum Distinguished Scholar Award. In 2016, Dr. Lofaso will serve as the Keeley Visiting Fellow, Wadham College, University of Oxford, where she will be working on a labor law monograph, The Once and Future Worker.
Anne Marie Lofaso is Professor of Law at West Virginia University College of Law, where she teaches labor and employment …
Michael S. Pepperman is an accomplished attorney known for his tireless advocacy on behalf of his clients. He focuses his practice exclusively on the representation of management in all aspects of labor relations and employment law. Mr. Pepperman is the chair of his firm’s Labor Relations Practice Group.
As a labor relations and employment lawyer, Mr. Pepperman provides advice and counsel to employers throughout the country in a wide range of businesses including manufacturers and fabricators, hospitality, retail, food services, transportation, death care and facilities management businesses among others as well as government entities and municipalities. He partners with clients to provide direction and step-by-step counsel in an effort to proactively address and manage employment and labor-related problems.
Michael S. Pepperman is an accomplished attorney known for his tireless advocacy on behalf of his clients. He focuses his …
Kara M. Maciel is a founding partner of Conn Maciel Carey and Chair of the firm’s national Labor & Employment Practice Group. She focuses her practice on representing employers in all aspects of the employment relationship.
Ms. Maciel works to create workplace solutions for her clients across all industries. She regularly provides advice and counsel to unionized and non-unionized workplaces regarding an employer’s rights under the National Labor Relations Act. She defends employers in litigation at both the federal and state levels, including matters related to ADA, FLSA, FMLA, Title VII, and affirmative action/OFCCP regulations.
Ms. Maciel pays special attention to the issues facing companies in the hospitality (including hotel owners and managers, resorts, restaurants, spas, country clubs, golf clubs, and fitness clubs); retail; grocery; food and dairy distribution; healthcare; trade association; and non-profit sectors.
Kara M. Maciel is a founding partner of Conn Maciel Carey and Chair of the firm’s national Labor & Employment …
Mr. Keller is a partner at Kamer Zucker Abbott in Las Vegas, Nevada. He exclusively represents employers in labor and employment law matters, including union organizing, collective bargaining, labor arbitrations, allegations of discrimination and harassment, wage and hour compliance issues, wrongful termination claims, non-competition and restrictive covenant enforcement, and reductions in force. Mr. Keller’s practice involves defending employers before the National Labor Relations Board, the U.S. Department of Labor, the U.S. Equal Employment Opportunity Commission, the Eighth Judicial District Court for the State of Nevada, the Nevada Supreme Court, the U.S. District Court for the District of Nevada, and the U.S. Court of Appeals for the Ninth Circuit. He was selected by Best Lawyers® as the 2015 Lawyer of the Year in the field of Litigation - Labor & Employment for Las Vegas and has an AV® Preeminent™ Martindale-Hubbell Peer Review Rating. Mr. Keller is a former Chairperson of the State Bar of Nevada's Section on Labor and Employment Law and the current Editor-in-Chief of the Nevada Practitioners' Journal of Labor and Employment Law.
Mr. Keller is a partner at Kamer Zucker Abbott in Las Vegas, Nevada. He exclusively represents employers in labor and …
Mr. Sobol represents employers in labor matters before the National Labor Relations Board, including unfair labor practice charges, representation matters, and in labor negotiations. He also represents management in employment matters and in matters arising under the Employee Retirement Income Security Act (ERISA). Mr. Sobol is licensed to practice in Pennsylvania, New Jersey and New York, and has been admitted in the Eastern District of Pennsylvania, the District of New Jersey, the Southern District of New York and the Court of Appeals for the Third Circuit. He received his B.A. from Temple University, and his J.D. from Columbia Law School. In 2014 and 2015, Mr. Sobol was named as a ‘Rising Star’ by Pennsylvania SuperLawyers. In 2015, Mr. Sobol was selected to Best Attorneys of America.
Mr. Sobol represents employers in labor matters before the National Labor Relations Board, including unfair labor practice charges, representation matters, …
Print and review course materials
Method of Presentation:
NASBA Field of Study:
NY Category of CLE Credit:
Unlock All The Knowledge and Credit You Need
Leading Provider of Online Continuing Education
It's As Easy as 1, 2, 3
Get Your 1-Year All Access Pass For Only $199
West Virginia University College of Law
About West Virginia University College of Law
About Obermayer Rebmann Maxwell & Hippel LLP
Founded in Philadelphia in 1904, Obermayer is a full service law firm with local roots and global reach. Our firm has a longstanding history of respected work and obtaining effective results for our clients. Since our inception, our values have remained constant: to satisfy our clients’ needs with the highest degree of efficiency, cost-effectiveness and integrity.
About Conn Maciel Carey PLLC
Conn Maciel Carey is a boutique law firm focused on Labor & Employment, OSHA, and Litigation. The clients we serve — from multi-national organizations to start-ups to individuals — seek us out for strategic guidance ranging from day-to-day employment counseling to managing government regulatory investigations to leading complex litigation. What sets us apart is our special emphasis on workplace challenges, our creativity in crafting positive solutions, and our passion for serving our clients' interests.
About Kamer Zucker Abbott
Nevada's businesses turn to Kamer Zucker Abbott for its skillful approach to employment and labor law issues. From handling routine inquiries to engaging in strategic decision-making, the firm works to diligently and efficiently achieve each client's particular objectives. Our clients run the gamut from small family-owned businesses to Fortune 500 corporations.
One of KZA's core beliefs is that employers are best served through preventive efforts to minimize the potential for legal claims and litigation. Whenever possible, the firm's attorneys provide information, training and advice to employers to help them address and resolve workplace issues before they escalate into formal, costly disputes. When litigation does occur, KZA defends its clients vigorously, drawing upon the comprehensive knowledge and experience honed over more than a quarter century of successful litigation and appellate practice.
By working directly with clients, the firm's lawyers are able to pinpoint potential legal issues, gauge their impact on business operations, and offer straightforward, practical strategies and solutions. KZA's emphasis on clarity allows business professionals to fully understand the extent of potential legal exposure, possible costs and the optimal way to resolve an issue.
Effectively resolving employment and labor law issues often requires decisive and deliberate action. If you are facing a labor or employment issue, please contact us as soon as possible.
About Sobol & Sobol PC
With over 40 years of experience, Sobol & Sobol has built a solid reputation based upon aggressive representation. Our attorneys are licensed to practice in Pennsylvania, New Jersey and New York.
We represent management in all aspects of union relations, including aggressively countering union organizing campaigns in pro-employer campaigns, winning National Labor Relations Act elections, negotiating union contracts and collective bargaining agreements, and protecting clients during strikes and picketing. We routinely defend clients against unfair labor practice charges before the National Labor Relations Board and state agencies, and arbitrate grievances under existing collective bargaining agreements.
We are experienced in counseling employers during major corporate changes, such as mergers, acquisitions, shutdowns or relocations, in an effort to limit withdrawal liability from multi-employer pension funds, and in dealing with successorship obligations.
We also represent clients in various other employment law matters.