Nlrb Elections: Ambush or Anticlimax?

• Publication year: 2015

NLRB Elections: Ambush or Anticlimax?

Jeffrey M. Hirsch

NLRB ELECTIONS: AMBUSH OR ANTICLIMAX?

Jeffrey M. Hirsch^*

The National Labor Relations Board's (NLRB) new election procedures represent a comprehensive reform of its representation process. As is the case for many broad reforms, the new rules have prompted significant criticisms and accolades. Many employers have decried the new rules as implementing an unfair "ambush" election process that will deprive employees of needed information and employers of their right to express their views about unionization. In contrast, unions have largely applauded the new rules as an improvement on an election system that they view as stacked against them.

The truth appears far less monumental. Although the NLRB's new rules provide a much-needed update to election procedures and aim to decrease many sources of unwarranted delay, they seem incapable of causing a significant impact on employees, employers, or unions. The new rules should result in a quicker election process, but not so quick that they can be fairly described as "ambush" or a deprivation of employers' ability to communicate with employees. Moreover, the modestly shorter time periods for elections are unlikely to improve unions' election win rates or increase union density in a significant way. In short, the NLRB has implemented a modest set of improvements to its representation process, and critics and proponents should not exaggerate the limited impact of those reforms.

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INTRODUCTION ............................................................................................ 1649

I. NLRB-ELECTION PROCEDURES ....................................................... 1651
II. THE NEW ELECTION RULES .............................................................. 1654

A. Electronic Filing ...................................................................... 1654
B. Excelsior List ........................................................................... 1654
C. Preelection Challenges ............................................................ 1657
D. Scheduling the Election ........................................................... 1660
E. Election Disputes ..................................................................... 1662
F. Blocking Charge Policy ........................................................... 1663

III. PRACTICAL EFFECTS AND EMPLOYEE INFORMATION ....................... 1664

CONCLUSION ................................................................................................ 1668

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INTRODUCTION

The basic procedures of the National Labor Relations Board's (NLRB or Board) election process has been largely stable for decades. That stability, however, camouflaged great dissatisfaction with the election process, particularly among unions.¹ The primary criticism is that parties, especially employers, are able to delay elections and unduly coerce employees before casting their ballots.² Many of these problems are out of the NLRB's hands, as they result from statutory or judicial limits.³ But others were well within the Board's control, especially delays involved in holding elections and certifying the results, which can substantially reduce employees' support for a union.⁴ As a result, unions' perception of the NLRB-election process has deteriorated to the point that they have increasingly opted to avoid elections and seek voluntary recognition from employers instead.⁵

With these problems in mind, the NLRB engaged in a comprehensive rulemaking process to revise its election rules in 2011.⁶ Facing legal hurdles

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based on the possible lack of a quorum during the rulemaking process, the Board abandoned the reforms in 2013.⁷ However, in 2014, the Board—with a full complement of members—adopted a new version of election rules.⁸

Employers have strongly criticized the election rules, primarily because they reduce the amount of time to run and certify an election.⁹ According to these critics, the new "ambush" elections will infringe employers' free speech interests and employees' right to make an informed choice about unionization.¹⁰ In contrast, unions have reacted positively, although many thought the rules did not go far enough.¹¹

Employers and unions taking opposing opinions about NLRB action is par for the course, but the disagreement raises a question about the rules' true impact. Will they create "ambush" elections that allow unions to secretly steamroll employees into a vote for unionization that would not have occurred before? Or will they merely paper over other problems with the representation process and have little actual impact? Only time will tell, but the rules appear to be fairly modest. We should see quicker elections, but not to the degree that they can be characterized as "ambush." Moreover, even with faster elections, it seems unlikely that unions' fortunes will improve dramatically—the hurdles to unionization are far too great for improved election procedures to overcome. In short, the NLRB is to be commended for eliminating many sources of unnecessary delay, but the rules' critics and supporters seem to be exaggerating their effect.

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I. NLRB-ELECTION PROCEDURES

Although the new election rules represent important changes, at base they merely provide a modest update of the Board's current procedures. NLRB elections, which are technically a means to test a "question concerning representation," occur for two primary purposes. The first is the more common "initial election," in which a union seeks to represent a unit of employees. The second is a "decertification election," in which unionized employees vote on whether to keep their current union. For both types, the Board will order an election only when at least 30% of eligible employees want one.¹²

The representation process begins with a party filing an election petition with the Board. In most cases, the union and employer enter into a voluntary preelection agreement that sets out the procedures for the election, such as which employees are eligible to vote and when the vote will occur.¹³ Although the new rules will affect many aspects of these "stipulated elections," they primarily target "contested elections" in which there is no agreement.

When there is a contested election petition, the NLRB regional office will conduct a hearing to resolve any disputes—such as the 30% threshold and eligibility of certain employees—and decide whether to order (or "direct") an election.¹⁴ Parties can appeal preelection determinations to the NLRB but review is discretionary and rare.¹⁵

After the "direction of election" and resolution of any preelection appeals, the employer must provide an "Excelsior list,"¹⁶ providing the union with contact information for eligible employees. Moreover, the employer must post NLRB Notices of Election at the worksite.¹⁷ Under the previous rules, there was also a mandatory twenty-five day waiting period for the Board to consider

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preelection challenges, despite rarely doing so.¹⁸ After that period, the region conducts a secret-ballot vote and counts the ballots. Immediately following the election, parties may raise further challenges, including allegations of misconduct during the campaign, which the region considers in a postelection hearing. The previous rules provided parties a right to appeal to the NLRB any postelection determinations.¹⁹ Once the Board resolves these challenges, it either certifies the results or orders a new election.

The Board's election reforms are intended to further the NLRA policy of resolving representation questions quickly and fairly.²⁰ Critics of the new rules argue that elections already occur within a reasonable time frame,²¹ and for most cases—especially uncontested ones—that is not an unreasonable view. However, unnecessary delay occurs in all elections²² and the time it takes to resolve many representation questions, especially in vigorously contested cases, is indefensible.²³

Over the last decade, the median time between the filing of the election petition and the actual vote has ranged from about 37-39 days.²⁴ However, there are sharp differences between the time to conduct stipulated elections, which occur in a median of 36-39 days, and contested elections, which take

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59-70 days.²⁵ Much of the difference between stipulated and contested elections result from the Board's need to resolve preelection disputes.²⁶

Delay also occurs after the election. For instance, in Fiscal Year 2012, parties filed postelection objections in 55 cases and, although a minority of all elections, these cases involved significant delay.²⁷ For the 42 challenges that required a hearing, it took regions a median of 73 days to issue a decision; for the 13 challenges that did not require a hearing, regions took 43 days.²⁸ Further delay occurs when parties exercised their former right to appeal postelection determinations to the NLRB, which adds approximately 95-127 days to the process.²⁹ Some of this delay is the result of complex issues and the need for three Board members to review the case;³⁰ yet, many postelection challenges are not substantive and face delay due to the lack of Board resources.³¹

Although the NLRB asserted that delay was not the "sole or principal purpose" behind its election reforms, a major goal of the Board was clearly to reduce the amount of time to run elections, especially the rare cases that take an inordinate amount of time.³² But no matter the Board's central aim, there is little doubt that the speed of elections is the principal concern of most interested parties. Unions typically want faster elections to reduce employers' opportunity to fight unionization while employers want slower elections for the opposite reason.³³

In Part II, I describe some of the major changes that the Board hopes will accelerate the representation process, as well as others unrelated to delay. Moreover, in Part III, I...