The NLRB Ambush Rule

May 19, 2015

Most people weren’t paying attention April 14 when the National Labor Relations Board (NLRB) put into effect new rules governing union organizing. The aptly nicknamed Ambush Rule will force employers to submit to a union vote within 21 to 24 days after receiving an organizing petition.

This isn’t a small thing. Union organizing is typically a stealthy enterprise in which unions can take months behind the scenes working to persuade a company’s hourly employees to sign up for union membership. Today’s union organizing is as likely to quietly occur on social media as with flyers handed out at the employee entrance.

What many people don’t know is that unions can – and often will – promise anything during a campaign, no matter how divorced the promises may be from reality.

Plenty of employees have learned that the hard way over the years. Once the vote is cast and the union is certified, it is extremely difficult for dissatisfied employees to get rid of the union that failed to deliver what it promised.

Historically companies have had more time (38 to 42 days) after receiving a union petition to make the case to their employees about why they are best served by a union-free environment.

No more.

The Ambush Rule requires an election “as soon as practicable” – likely within 24 days. Any dispute about who should vote in the election will no longer delay that timing. A petition cleverly served on a Friday could make eight of those 24 days occur over weekends. Good luck trying to overcome months of union promises and hard sales pitches in that short of time when unions won 70% of the votes under the old rules.

Also add to this risk picture the NLRB’s recent support of “micro” bargaining units that are a subset of the overall workforce.  Now a union can decide to organize supportive subgroups of employees with the objective of subsequently organizing the entire workforce at a facility.

Companies that want to maintain the competitive advantages of a union-free workplace need to become assertive in building and maintaining union-free cultures. In recent years the NLRB has sharply curtailed the free speech of employers regarding unionization, but employers still have the right to talk about the costs and risks of union representation.

Companies can – and should – make their union-free philosophy a part of a new employee orientation. They also should positively affirm the rights employees have regarding union organization: The right to be free of threats and harassment. The right to speak their minds freely if they don’t want a union. The right to cast a secret ballot.

To prepare in advance, members of a company’s leadership team – especially front-line supervisors –
should be trained and ready to confidently lead the discussion about why unions aren’t needed for the success of employees or the company.

Successful employers who operate union-free don’t achieve it by using scare tactics or pressure. They do it by providing a safe, rewarding workplace that shows respect for everyone in the company. Going forward they will need to add to that an ongoing, constructive conversation about how a union-free culture represents the best option for long term security and opportunity. Companies need to recognize that’s a conversation that should start today (if it’s not already started) and continue from now on.

The best time to talk with employees about a union-free workplace has always been before the stress and pressure of a union organizing campaign arises. The implementation of the Ambush Rule makes it a new imperative for companies that want to keep their workplace union-free.

Submitted by Don Lawless, partner, Barnes & Thornburg, Labor and Employment Law Department and frequent Michigan Chamber Services presenter. Co-written by Randy Boileau, owner, Boileau Communications Management LLC.