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Latest NLRB action seen as demise of ‘quickie’ union election rule

The National Labor Relations Board’s (NLRB) decision to seek public input on the controversial 2014 rule that sped up the union election process is likely to result in the rescission of the rule, according to an attorney who keeps a close watch on the Board’s actions.

On December 14, the NLRB announced that it would publish a Request for Information (RFI) in the Federal Register asking for public input regarding the election rule. The RFI seeks input on three questions:

  1. Should the 2014 election rule be retained without changes?
  2. Should the 2014 election rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 election rule be rescinded? If so, should the Board revert to the Representation Election Regulations (RERs) that were in effect prior to the 2014 election rule’s adoption, or should the Board make changes to the RERs? If the Board should make changes to the RERs, what should be changed?

David Fortney, an editor of Federal Employment Law Insider and a cofounder of Fortney & Scott, LLC, in Washington, D.C., predicts eventual rescission of the rule.

“I anticipate that the RFI will be the first step in a rulemaking procedure that ultimately will result in the rescission of the so-called ‘quickie’ election rule,” Fortney said after the announcement of the RFI. “I believe that the newly constituted Board will return to the standard election procedures that were in place before the quickie election rule was instituted during the Obama administration.”

The Obama-era rule, which was implemented in 2015, was vehemently opposed by many employers because it was seen as giving an unfair advantage to unions in the union election process. The rule (1) shortened the time between the filing of an election petition and the election, (2) provided for electronic filing of election petitions and other documents, and (3) delayed legal challenges until after elections had been held.

The 2014 rule requires employers to provide lists of a potential bargaining unit’s employees and their contact information as well as a statement of position identifying employers’ stand on various issues early in the process. The rule stipulates that issues not raised in the position statement will be waived in NLRB hearings challenging the election.

Union election statistics

Figures from the NLRB show that the 2014 election rule hasn’t had the dramatic prounion effect many had predicted, Fortney said. He cites NLRB statistics showing that after the rule was implemented in 2015, unions won approximately 10% more elections, including 69% of elections in 2015, 72% in 2016, and 71% in 2017. Previously, Fortney said, unions won about two-thirds of elections—68% in 2014, 63% in 2013, and 65% in 2012.

“However, there has not been a significant increase in the number of elections under the quickie election rules, as was anticipated, with only 1,290 elections in 2015, 1,299 in 2016, and a drop to 1,193 elections in 2017,” Fortney said. The previous years saw slightly more than 1,200 elections per year—1,202 elections in 2012, 1,238 in 2013, and 1,260 in 2014.

“Although unions now win more elections under the quickie election rule, the slight increase, and [this] year the drop, in the number of elections indicate[s] that the quickie election rule has not had as significant a boost in union representation of workers as was predicted by many,” Fortney said.

Effect of new Board

The Board’s decision to issue the RFI was made possible by the addition of two new Republican members. The five-member Board is made up of three Republicans—Chairman Philip A. Miscimarra and the two new Republican members, Marvin E. Kaplan and William J. Emanuel—and two Democrats, Mark Gaston Pearce and Lauren McFerran. Pearce and McFerran wrote dissents to the decision to issue the RFI.

Responses from the public will be accepted through February 12, 2018.