By Sarah K. Ott*
The National Labor Relations Board (the “NLRB”) recently released data revealing a significant increase in union-filed representation petitions since the NLRB implemented its new “ambush” election rules on April 14, 2015 (“New Rules”). The New Rules completely changed the decades-old representation election process, saddled employers with added administrative obligations, and significantly limited an employer’s ability to argue bargaining unit issues prior to a representation election. The New Rules also significantly shortened the time after a petition is filed that an election may be held. Under the New Rules, an election may be held as soon as thirteen days after a union files a petition. Zashin & Rich described the anticipated changes in the New Rules in a recent Employment Law Quarterly Article titled “NLRB Pulls a Fast One: Final “Quickie” Election Rules for Union Elections Adopted” (Winter 2015 Employment Law Quarterly, Vol. XVII, Issue i). This “quickie election” process is expected to allow employers little time to mount an effective campaign to educate employees about the downsides of unionization. The NLRB’s new data suggests that unions are taking advantage of the benefits of the New Rules to employers’ detriment.
From March 13 to April 13, 2015 (the month prior to the New Rules’ effective date), unions filed 212 representation petitions. During the month immediately following the New Rules’ implementation, from April 14 to May 14, 2014, the NLRB received 280 election petition filings. This number is also well above the monthly average of representation petition filings for 2012 and 2013 which were 164 and 165 respectively. If some unions sat on petitions for representation until the New Rules came into effect in order to take advantage of the changes, there may be some leveling off in the number of election petition filings in the coming months. However, some effects of the New Rules are independent of the increase in election petition filings.
In addition to the significant increase in the number of petitions filed immediately following the New Rules implementation, the number of days between the filing of a petition and an election has plummeted. In 2012 and 2013, elections were typically held 38 days after a petition was filed. For representation petitions filed since April 14, 2015, elections are being scheduled for a median of 23 days after the petition was filed (a reduction in employer campaign time of 40%). Even if the number of election petition filings falls off, that would not affect the median number of days between the filing of a petition and an election. It appears clear that, as anticipated, the New Rules have drastically tilted the field against employers by reducing one of the most valuable resources available in combatting an organizing campaign: time.
The NLRB data confirms that the New Rules are a massive shift toward unions. The National Labor Relations Act grants employers the right to oppose unionization and explain to their employees why unionization is not in their best interests. However, the New Rules reduce the time employers have to make their arguments and educate their employees. While employer groups have challenged the New Rules in federal courts, this week, a federal judge in Texas rejected one such effort contending that the New Rules violate the National Labor Relations Act and the Administrative Procedure Act. While a case filed by the U.S. Chamber of Commerce remains alive in the D.C. Circuit, employers must be prepared for the likelihood that the New Rules are here to stay.
Employers who oppose unionization should consider regular communication about the perils of union representation with employees prior to an organizing drive. In addition, employers should consult with counsel about legal means to avoid unionization. Additionally, upon receiving notice that a union has filed a representation petition regarding their employees, employers should immediately seek counsel as the New Rules do not afford employers the luxury of time and the numbers show that unions have taken advantage of the New Rules.
Sarah K. Ott practices in all areas of labor and employment law. For more information about the NLRB’s new election rules, please contact: Sarah K. Ott | sko@zrlaw.com | 216.696.4441
