Labor Lawyer: Employers Need to Get Ready for NLRB Ambush

Must “have eyes and ears open”

• April 6, 2015 1:30 pm


The Obama administration is pressing ahead with new union election regulations that will require extra vigilance from employers, according to a leading labor attorney.

David Phippen, a management-side lawyer at Constangy, Brooks, & Smith, said that the National Labor Relations Board, the nation’s top labor arbiter, has created a system where "most of the burdens [fall] on employers." Those extra burdens are compounded with a compressed timeline: The NLRB mandates that employers respond to petitions for union election with specific objections or unit organizing waivers within eight days and that elections themselves take place in as little as two weeks.

"Unions are doing organizing as a full time venture and using community front groups to do much of the marketing. Unions generally control the timing already," Phippen says. "The employer will have little time—less time than before, which was already relatively short when compared to other types of elections—to communicate another side of the story to employees if it wants to do so."

Critics of the law have dubbed it the "ambush election rule" because of the hasty timeframe. Unions can spend months or even years trying to win support from workers by arguing about the benefits of organizing. An employer only has a matter of weeks to offer the other side of the story.

The imbalance of available time provoked an immediate reaction from congressional Republicans, who passed resolutions to block the new rules in March. President Obama used a procedural veto on Tuesday to allow the rule to move forward.

The rules will "[d]eny workers, employers, and union leaders a fair union election process," the House Education and Workforce Committee said in an April 2 press release.

The NLRB began rolling out the new regulations even after the House and Senate passed their blocking measures. The agency conducted one of its early training seminars for regional directors, who oversee union elections, at SEIU Local 32BJ headquarters in March. The new rules have proved complicated for even the most experienced labor attorneys. NLRB General Counsel Richard Griffin forgot the new timelines during a congressional hearing in March.

Phippen said that employers must be vigilant and educate themselves about the new labor regulations, as well as prepare contingencies before unions file petitions for election. This is even more crucial because labor organizations are experienced at working within NLRB regulations, while many small businesses are unfamiliar with the intricacies of labor law.

"Employers may want to prepare in advance, that is, to have ears and eyes open, and communications ready," he said. "Much of the new system seems set up to mute employers to some extent and to generate unfair labor practice charges against employers who cannot navigate a more complicated minefield."

The National Federation of Independent Business and a coalition led by the Chamber of Commerce have filed separate lawsuits attempting to throw out the "ambush" rule.

The rule will go into effect on April 14.