In April 2015, the National Labor Relations Board (NLRB) implemented a rule that effectively speeds up the time in which union representation elections occur. The process toward a union representation election typically starts when the union petitions the NLRB to conduct an election. During the months since the rule took effect, the time between petition filing and the representation election has been about 23 days. That is down 39.5 percent from the 38 day average that was common before the rule went into effect. As long as the rule remains in effect, there is every reason to expect this trend of quicker elections will continue.
The employer community has great concerns about the NLRB rule and the resulting reduction in the time for union representation elections. It is often referred to by employer groups and representatives as the “quickie election rule” or the “ambush election rule.” The time between petition filing and election is a crucial period for employer communication to employees. When a union files a petition for representation election, the union is usually at the peak of its support among employees. Between petition filing and election, the union’s representatives will actively campaign for employee votes in the upcoming election. Employers have the same right to communicate lawful and honest information to employees in an effort to influence them to vote to stay non-union. An abbreviated time for communication makes it much more difficult for the employer to convey the message, especially in a large workforce. Therefore, shortening the time between petition and election may give unions an advantage. Although, it is interesting to note that in the months since the rule took effect the union percentage win rate in elections has been about 62 percent, which is very close to the overall union win rate in elections for the past few years.
Because of concerns about perceived unfairness in the Board’s rule, legal challenges have been pursued by employer interest groups. The United States Chamber of Commerce and the National Association of Manufacturers filed suit in the federal district court for the District of Columbia challenging the rule as an unconstitutional abuse of authority and a violation of the laws governing administrative rule-making. Just as a different federal court in Texas did in June of this year reviewing a similar challenge, the DC district court rejected the claims in the lawsuit and upheld the NLRB rule.
This means that the rules that promote expedited processing of election petitions will continue to be enforced by the NLRB. As a result, non-union employers should continue to review and improve their efforts to maintain non-union status and, in the event of union organizing activity, should anticipate the march from petition to election will be a quick one and prepare accordingly.