Representation and Election Process Overview

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:

  • Employees can file a petition or a union can do so on their behalf, known as an “RC” petition (Certification of Representative)
  • An employer can file a petition, known as an “RM” petition (Employer Petition)
  • Employees or someone acting on their behalf may file a petition that questions the continued representative status of a current bargaining representative, known as an “RD” petition (Decertification)

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:

  • Unfair labor practice charges;
  • Nullification of election results; and
  • An order to bargain with a union without an election or despite the union’s loss of an election.

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:

  • Shorter Time for Pre-Election Hearings. Pre-election hearings will normally be set to open eight days from the date of service of the notice of hearing, except in cases presenting “unusually complex issues.”
  • Employer Must Prepare and File a Position Statement to Identify Disputed Issues. An employer must prepare and file a comprehensive “statement of position” by noon on the business day preceding the date of the hearing. In that position statement, the employer must identify any issues regarding the composition of the proposed bargaining unit; day, time and place of the election; and other election-related matters. Any issues omitted by the employer from its statement are waived by the employer and may not be raised later unless the employer can show good cause for the omission.
  • Employer Must File a Preliminary List of Voters as Part of the Required Position Statement. The employer must also provide a preliminary list of voters with names, work locations, shifts and job classifications in the proposed unit, but without contact information, to the petitioning union (and any other parties) and to the regional director. If the employer contends that the proposed unit is inappropriate, the employer shall separately list the names, work locations, shifts and job classifications of all individuals, if any, that it contends must be added to or excluded from the proposed unit to make it an appropriate unit.
  • More Discretionary Authority to Regional Directors and Less Pre-Election Resolution of Disputes Concerning Unit Placement, Exclusions and Eligibility. The regional director will decide the issues to be litigated in each case. The hearing officer may solicit offers of proof on any or all issues. If the regional director determines that the evidence described in the offer of proof is insufficient to sustain the proponent’s position, the evidence shall not be received.
  • No Right to File a Post-Hearing Brief. The regional director will have the authority to determine whether parties may file post-hearing briefs.
  • Voter List Requirements. Employers must provide the full names, home addresses, email addresses, telephone numbers, work locations, shifts, and job classifications of eligible voters within two business days of the regional director’s approval of an election agreement or direction of an election. This is not only a shorter time frame (it was seven calendar days), but for the first time requires personal telephone numbers and email addresses that are reasonably available to employees. The rules also require that the list be produced in electronic form unless the employer lacks the capacity to do so. This voter list is in addition to the preliminary list of voters noted above, even though the names on both lists may be (and many times will be) identical.
  • Earlier Elections. Elections are held “as soon as practical,” thereby permitting elections to be held as early as only a few days after the regional director’s decision (assuming nonemployer parties waive their right to have the voter list at least 10 days before the date of the election).
  • No Right to NLRB Review of Post-Election Disputes. A party’s right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes is eliminated. NLRB review of post-election disputes is discretionary.
  • Electronic Filing of Petitions and Other Documents Permitted. Petitions and other documents are permitted to be filed electronically rather than by hand or regular mail.

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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