New union election rules yield much quicker elections

by Tony Puckett

Union election petitions and quicker elections have been the immediate effect of the National Labor Relations Board’s (NLRB) new election rules, which took effect April 14. The new rules were intended to speed up the election process through quicker deadlines and delaying some hearings on certain issues until after the election.

Unions taking full advantage of new rules
According to the NLRB, a total of 212 petitions for election were filed with the Board from March 13 to April 13 of this year. By contrast, 280 petitions were filed from April 14 to May 14—a 32 percent increase. The median time from petition to election for all representation elections held since April 14 was 23 days. Before the new rules, the median time for getting to an election was 38 days after a representation petition was filed.

In the two weeks after May 14, an additional 104 petitions for representation were filed. The upsurge in petitions indicates that labor unions were waiting for the new rules to take effect before filing petitions against many employers.

Having a quicker union election was employers’ primary objection to the new rules. An employer that is unaware of union interest among employees until a representation petition is filed has a lot of ground to make up in the campaign. Shortening the election period by 15 days on average provides unions with a significant advantage under the new election rules.

Unions have been ecstatic with the faster elections. In one case, per diem nurses at a Pennsylvania hospital filed a petition for union representation on May 20, and the election was held on June 9, giving the hospital only 20 days to campaign.

Must-know changes for employers
The new election rules have a number of significant changes for employers to understand:

1. Unions may now electronically file petitions for certification.
2. An employer must post a “notice of petition” within two business days of the filing of a petition.
3. Preelection hearings to resolve disputed issues—e.g., composition of the bargaining unit—must be held within eight days of the employer being served the notice of petition.
4. If the employer fails to raise an issue in the preelection hearing, the issue is deemed waived.
5. Position statements are due from the parties by noon on the business day before the preelection hearing.
6. The employer must provide the union with a preliminary voter list one business day before the preelection hearing. The list must include full employee names, work locations, shifts, and job classifications.
7. Voter eligibility determinations are deferred until after the election.
8. The employer must provide the Excelsior employee eligibility list to the NLRB and the union within five days after an election is ordered. This list must include full employee names, work locations, shifts, job classifications, and contact information, including home addresses, available personal e-mail addresses, and available home and personal cell phone numbers.
9. The employer must post—and possibly e-mail—a “notice of election” for employees three working days before the election.

Bottom line
The election rule changes dictate that employers consider ongoing efforts to educate employees about wages, benefits, and other beneficial policies they already have in place—without any union’s involvement. You also must be diligent in responding to employee issues or complaints before a union  organizer is talking to employees. Steps like this will put you in a better position to respond to a representation petition.

Tony Puckett is an attorney with McAfee & Taft in Oklahoma City, Oklahoma. He may be contacted at  tony.puckett@mcafeetaft.com.