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New NLRB "ambush" rule cuts time for unionization process

April 24, 2015
A new election rule of the National Labor Relations Board that took effect April 14 speeds up the process by which employees can unionize.
Under the new NLRB rule, employees could potentially organize a union in less than two weeks, compared to the previous average of 38 days between the time a petition is filed and the election is held. Business groups who say the rule does not give them enough time to prepare for union elections refer to it as the "ambush" or "quickie" election rule.
"Shortening the time frame before an election robs employees of the ability to gather the facts they need to make important and informed decisions like whether or not to join a union and denies employers adequate time to prepare," Jay Timmons, president and CEO of the National Association of Manufacturers, said when the rule was finalized in December. 
Labor officials say the new rule will prevent management from unnecessarily delaying union elections.
"[This] means corporate bosses will have fewer opportunities to cheat you out of your right to join together," said Mary Kay Henry, president of the Service Employees International Union.
But David French, senior vice president of government relations at the National Retail Federation and a detractor of the new rule, said: "These rules are similar to the ‘hurry-up offense,’ where one side hopes to catch the other off-guard with misdirection and a hurried pace. In this case, employers will be put on constant defense and always placed at a disadvantage."
Christopher Jolie, an attorney with the CATA’s labor counsel, Franczek Radelet P.C., said employers can enhance their ability to deal with the new rule and the expected increase in union organizing by studying the NLRB’s recently issued guidance memorandum and FAQs on the new rule.
Employers, Jolie said, should also consider the following steps to prepare:
• Designate a team that is responsible for dealing with the new rule once a petition is filed. For example, this team would be responsible for reviewing all NLRB correspondence; communicating with the NLRB; preparing documents (employee lists, statements of position, etc.) to be submitted to the NLRB; and preparing for a hearing.
• Designate another team (tightly coordinated with the team described above) that is responsible for campaign issues if a petition is filed. For example, this team would be responsible for gathering information on the petitioning union; developing a plan for communicating the employer’s position on third party representation; assessing vulnerabilities and on-going evaluation of campaign strategy.
Once a petition is filed, both teams would be busy at the same time. Given the compressed time frame under the new NLRB rule, Jolie said employers should begin preparing now in order to successfully respond to a simultaneous NLRB petition and campaign.