Court’s decision solidifies NLRB’s ‘quickie’ election rule

A June 10 ruling by the U.S. 5th Circuit Court of Appeals dealt a blow to employers hoping to escape the constraints of the National Labor Relations Board’s (NLRB) rule speeding up union representation elections.

The Associated Builders and Contractors of Texas and the National Federation of Independent Business filed the challenge to what many employers have dubbed the “quickie” or “ambush” election rule. The court’s opinion, authored by Judge Edith Brown Clement, states the Board “acted rationally and in furtherance of its congressional mandate in adopting the rule.”

Foes of the new union election rule had hoped the court would find that it unlawfully limits employers’ rights during union campaigns and violates employees’ privacy, but that effort is likely over.

“Absent a Supreme Court reversal, it appears there are no remaining court challenges to the NLRB’s new quickie election approach,” said John T. Neighbours, a partner with Faegre Baker Daniels in Indianapolis, Indiana, after the court’s ruling. He added that as long as the NLRB has a Democratic majority, the shortened election process is “here to stay.”

“This is hugely advantageous to organized labor, particularly when the use of [quickie] elections is coupled with the NLRB’s sanction of micro units,” Neighbours said. “For years, elections were commonly held as long as three to four months after a union’s filing of a representation petition and typically among all employees who shared a community interest.”

Neighbours said conventional wisdom suggests that the shorter the time from the filing of a petition for a union election to the actual election, the more likely it is unions will prevail. With the shortened process, unions “can organize among a small group of targeted employees very quickly and file a petition,” and the employer is left with little time to “present a thoughtful response [that] in all cases employees deserve to consider,” he said.

Neighbours said the challenge employers face in responding to an organizing drive “is daunting at least and possibly impossible for many.” Therefore, targeted employees may not respond as thoughtfully to the question of whether union representation is in their best interest.

“If unions continue to take advantage of quick elections, employers wishing for their employees to have the opportunity to remain union[-]free will need to develop techniques [that] prepare employees in advance of signs of union activity for how to think about the question of whether union representation is in their best interest,” Neighbours said. “The discipline of such approaches will prove difficult for many employers[,] particularly for those whose employees will . . . likely . . . be susceptible to a union’s appeal for representation in an unprecedented short period of time.”

Steven R. Semler, an attorney with Fortney & Scott, LLC in Washington, D.C., calls the 5th Circuit’s decision part of the Obama administration’s “one-two punch” regarding unions. In addition to the shortened union election process, the U.S. Department of Labor’s (DOL) “persuader” rule, scheduled to take effect July 1, will make it harder for employers to fight union-organizing drives.

The persuader rule will require employers and their attorneys and consultants to file with the DOL for public disclosure all agreements and payments to attorneys and consultants for providing advice, counter-organizational campaign training, and assistance on maintaining nonunion status. Under the old rule, attorney and consultant assistance was exempt from the reporting requirements under the “legal advice” exception of the Labor Management Reporting and Disclosure Act (LMRDA). Semler said the new persuader rule will make it difficult for employers to obtain counsel willing to disclose fees for advising what employers should do to quickly prepare for a union vote.

Mark Flora, a partner with Constangy, Brooks, Smith & Prophete LLP in Austin, Texas, said a review of statistics since the new election rule went into effect shows that union elections are occurring faster (some within two weeks), but the statistics he’s seen don’t show the dramatic impact some had predicted. He said early statistics show elections are occurring 12 to 13 days faster than under the old rule, and the union victory rate has gone up from 65 percent to 68 percent. So the 5th Circuit’s ruling— while not as catastrophic as some had feared—is “not good news” for employers wanting to stay union-free.

Flora said his advice to employers is the same as it has always been. “If you do your job, manage your facility fairly, and you do it 365 days a year, that’s all you can do,” he said. It’s possible employers can get “ambushed” by a union campaign, but “the old adage is that you get the union you deserve,” he said. “There’s still a lot of truth to that. It still comes down to how you treat your people.”