Union Elections Swell in ‘Ambush’ Era

Certification votes up 32 percent since new election rules enacted

June 2, 2015

The National Labor Relations Board is beginning to see a spike in union election petitions just six weeks after implementing controversial new rules critics say favors labor groups.

The NLRB, the federal labor arbiter that oversees union elections, told Law360 that it experienced a 32 percent increase in election petitions in the month following the implementation of new regulations. The NLRB passed a new set of rules speeding up the timeline of union elections in April over the objections of Congress. The result came as no surprise to Steve Bernstein, a management side labor attorney at Fisher & Phillips LLP.

"We’ve been telling clients, like everyone else has, that this would generate an increase in union activity," he said.

The new rules took effect on April 14 after President Obama vetoed a congressional resolution to thwart them. Unions had every incentive to hold off on filing petitions. Election petitions filed after April 14 would subject employers to more stringent timelines and also entitle unions to additional personal information for workers, such as email address and their workstation.

The shorter deadlines mean employers have limited time to make the case against unionization, while union organizers can spend weeks or even months canvassing supporters in the workforce. The NLRB found that in the post-"ambush" era, elections took place 23 days after petition filings, according to Law 360. That is about 40 percent faster than the 38-day gap unions and employers experienced in 2013, the most recent NLRB data available.

"It appears now that unions believe they can catch employers flat footed," Bernstein said. "If the petition is the result of a blind-sided effort, unions come into the process with momentum and employers come in in reactionary mode."

One practical aspect of the new rules will be emboldened petition filings, according to Bernstein. Even under the old rules, unions prevailed in about 64 percent of elections in 2013, according to the NLRB. That is because unions generally do not call for the costly process of an election until they have a majority of employees signing onto NLRB petitions. Bernstein predicts that will change now that employers have less time to respond.

"They were unlikely to file [for an election] without at least 60 or 70 percent interest, but now they may be more comfortable filing minority petitions," he said.

With the legislature unable to block the regulations, business groups turned to the courts. Several lawsuits were filed in federal courts objecting to the new measures. Those efforts suffered a setback on Monday when Federal Judge Robert L. Pitman, an Obama appointee, denied the Texas chapter of the Association of Builders and Contractors’ motion to halt the rule.

"Plaintiffs point to nothing in the record which supports their conclusion that the Board intended to favor organized labor," Pitman ruled.

Labor watchdogs, including the National Right to Work Foundation, said the judge ignored the history of pro-union bias from President Obama’s labor board.

"It is extremely disappointing that the judge in this case brushes aside the many legal problems with this one-sided NLRB rule that makes no sense unless the goal is to place many workers as possible under union control as quickly as possible," NRTW spokesman Patrick Semmens said in a statement. "Union organizers can bombard workers with propaganda using the workers’ personal contact information that the NLRB now mandates be given to the union, but at the same time workers are denied the most basic information necessary to make an informed decision."

Bernstein said the lawsuits were always an uphill climb, as judges are reticent to rein in the rulemaking authority of federal agencies. Employers will have to move on and adapt to operating within the new framework, though that could change if a Republican wins the White House in 2016 and appoints a new NLRB in 2018.

"Most of us were anticipating an adverse outcome for businesses," he said. "We’ll see more of a focus on prevention going forward, rather than hoping the courts would provide a panacea."

Published under: NLRB , Unions