On December 13 the National Labor Relations Board announced amendments to a controversial 2014 election rule issued under the Obama era NLRB. The amended rule will be published on December 18, and is scheduled to go into effect 120 days later, on April 16, 2020.
The union friendly 2014 rule, widely described as providing for “quickie” elections, drastically reduced the number of days between a union’s filing of a petition for election and the election itself. The short window between petition and election reduced the employer’s opportunity to mount an informational campaign opposing the election, as well as limited employers’ rights to contest the scope of the bargaining unit and eligibility of voters until after the election had actually occurred.
The new rule, while not rolling back all the 2014 changes, is nonetheless an improvement for employers. Some of the significant changes include:
- Pre-election Hearing: Moved from eight calendar days from service of election papers on the employer to 14 business days. The new rule also allows the employer to file briefs following the hearing.
- Position Statements: Employers now have seven calendar days from service of the petition; this was moved to eight business days. Unions are now required to respond to the employer’s position statement by noon the day before the scheduled hearing.
- Unit Scope and Voter Eligibility Determine Before the Election: Issues such as who should be in the bargaining unit, and who is eligible to vote in the election are decided before the election is scheduled, rather than after the fact.
- Elimination of the “Quickie” election: An election under the 2014 rules could occur as soon as 12 calendar days after the petition was received. The new rule changes that to 20 business days.
It is not clear the new rules will drastically alter the election landscape that generally favors unions. Even before the “quickie” elections were put into place in 2014, unions won a majority of the elections held-65% on average from 2012-14. After the “quickie” election rule, the win percentage for unions increased by 10%-from 2015-17 unions won an average of 71% of elections.
There is little doubt that increasing the number of days before the election helps the employer, primarily by allowing more time to provide information to employees who may be uniformed or on the fence about voting in favor of the union. But, it is important to remember that resisting union organizing efforts starts long before a representation petition is filed. By the time the union files the petition, it has already worked with your employees for months to persuade them to the union cause, and likely has convinced more than half the employees who will participate in the election to sign a union authorization card. There are likely one or two issues, such as pay, benefits, or working conditions, that are galvanizing union support. If the employees don’t hear from the employer about these issues until the representation petition is filed it may already be too late, regardless of how much time passes before the election occurs.