No Reprieve for Employers: President Obama Vetoes Congressional Resolution Halting Implementation of NLRB’s Ambush Election Rule

Executive Summary:  The National Labor Relations Board (NLRB or the “Board”) is now poised to implement its new “ambush election” procedures on April 14, 2015 after President Obama vetoed a Congressional resolution yesterday, which had overturned the Board’s controversial final rule changing the way it administers union representation elections.   As discussed in our December 12, 2014 Legal Alert, the NLRB’s new rule dramatically shortens the time period between the filing of a petition for  union representation and the holding of the election (from 40 days currently to as little as 15 days). The rule also substantially limits the opportunity for a pre-election evidentiary hearing on important issues such as the appropriate bargaining unit, supervisor determinations and individual voter eligibility.

An override of the President’s veto is unlikely because supporters of the resolution in the Senate do not have the two-thirds majority needed for an override. Employers should also not expect an eleventh hour reprieve from the courts before the Board’s final rule goes into effect. Although lawsuits challenging the rule have been filed in federal court in Texas and the District of Columbia, as of today, neither court has issued an order delaying implementation of the rule. Instead, employers should act now to assess their vulnerability to union organizing and take steps to remedy any problems that might prevent the company from maintaining its non-union status.

The Challenge for Employers Created by the Board’s New Election Rule

The Board’s new rule has the primary effect (and perhaps purpose) of allowing union representation elections to occur as quickly as possible. It will be much easier for unions to win NLRB elections. Any employer that does not become aware of a union organizing campaign until after it receives an election petition will have very little time to make an effective case against unionization. As a consequence, the “win rate” for unions in representation elections is likely to increase significantly.

As discussed in more detail in our prior alert, employers who desire to remain non-union must take steps now to counter any potential unionization effort. These steps include assessing employee attitudes about the company – essentially “taking the temperature” of the workplace to determine whether there are serious issues that need to be addressed. Employers should also consider auditing their employee relations program to ensure that supervisors are treating employees fairly. Employees who feel respected by management are much less likely to be receptive to a union’s message.

Front-line supervisors must also be thoroughly trained on how to recognize the signs of union organizing and respond appropriately, and how to address employees’ questions regarding unions when they arise. If it has been some time since most supervisors had such training, consider conducting a refresher course in union avoidance for all supervisors.

Frequent interaction with employees on the issue of unions is vital. Given the new “quickie election” rules, employers must become more aggressive in communicating their position that employees are better off in a non-union environment. Employers should use various techniques and media to communicate their message, including new employee orientation, employee handbooks and “Don’t Sign the Card” meetings.