The governing law for selecting a bargaining representative is found primarily in section 9 of the NLRA.1 Selection (or de-selection) can occur by three related processes:
The filing of a petition by a union typically follows an intense period of organizing activity by professional union organizers with the support of employees. Among other things, the petition must describe the scope of the unit of employees that is sought to be organized and who may, therefore, vote in a secret-ballot election.
Furthermore, an employer’s conduct during this period is subject to a complex set of rules, any violation of which can result in negative consequences, including:
The NLRB’s expedited election rules, often referred to as the “ambush election” or “quickie election” rules, went into effect on April 14, 2015.
These were expected to significantly shift the playing field and make it far easier for unions to organize employees. Under the rules, employers have significantly less time to educate their employees about the pros and cons of unionization, and also must adhere to tight deadlines to provide information about employees, which can be time-consuming and burdensome. Moreover, the rules severely restrict the ability of an employer to challenge improper electioneering by the union or the appropriateness of the proposed bargaining unit.
Although the ambush election rules were subject to various challenges in the courts, they were ultimately upheld by the Fifth Circuit.2
The “ambush election” rules are summarized below:
The Board’s most recent data shows that the median number of days from the filing of the petition to the election has fallen from 37 days in 2014 — the year before the new rules took effect — to 22 days in cases with a stipulated election agreement. For contested cases in which a pre-election hearing is held, the median number of days to an election dropped to 36 days in 2017 from 59 days in 2014.3
1.29 U.S.C. 9
2.Associated Builders and Contractors of Texas, Inc. et al. v. NLRB, 826 F3d 215 (5th Cir. 2016)
3.https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-days-petition-election (last viewed on Nov. 28, 2018).
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