Quickie Election Rules Have Not Dramatically Helped Unions Organize

The NLRB recently released its report on representation elections for fiscal year 2017. The results are consistent with fiscal years 2015 and 2016 — though unexpected given the 2015 Quickie Election rules dramatically limited the time employers had to ensure its employees could make an informed decision prior to voting in the election.

The Quickie Election Rules drastically curtailed the time employers had to determine who they believed belonged in the proposed bargaining unit and to generate the required list of possible voters, Voter List, (formerly known as the Excelsior List) that clarified who the employer and union needed to communicate with respect to the election.  Until the employer creates the voter list pursuant to an election agreement or a decision and direction of election, the employer cannot be certain whom it needs to educate to ensure the voters make an informed decision.  Prior to the Quickie Election Rules, the NLRB would not schedule an election fewer than 25 days after the direction of election to allow the NLRB to rule on a request for review of the decision.   Thus, employers had a minimum of 25 days from the NLRB’s Regional Office’s direction of election to educate all employees entitled to vote on possible negative consequences of unionization.  After the Quickie Election Rules implementation, employers typically have about 12 days to educate all employees the NLRB has included in the unit or permitted to vote.  Thus, employers have less time to educate employees under the Quickie Election Rules.  Despite this, unions have not greatly increased their win rate in representation elections.

Here are some of the key findings in the report:

  • Prior to the Quickie Election Rules, the NLRB typically conducted elections about 38 days after the filing of the election petition. Since the Quickie Election Rules, the NLRB conducted elections approximately 23 days after the filing of the petition.
  • In the three years preceding the Quickie Election Rules, unions won 68% of elections in 2014, 63% in 2013, and 65% in 2012. In the years following the Quickie Election Rules, unions won 69% of elections in 2015, 72% in 2016, and 71% in 2017.
  • In the three years preceding the Quickie Election Rules, the NLRB conducted 1202 elections in 2012, 1238 in 2013, 1260 elections in 2014. Despite the new more favorable rules, the NLRB only slightly increased the number of elections it conducted in 2015 and 2016, 1490 and 1299 respectively. However, the number of elections the NLRB conducted in 2017 declined to just 1193 elections, fewer than the NLRB conducted prior to the implementation of the Quickie Election Rules.

The latest report suggests that the Quickie Election Rules has slightly improved unions chances of winning election, but it is unclear whether the changes will increase the percentage of the private sector workforce that is organized. In the first two years after implementation of the Quickie Election Rules, the NLRB conducted more elections than it had during the three years preceding the Rules implementation, but conducted even fewer elections in fiscal year 2017 than it conducted prior to implementation of the Quickie Election Rules.

Whether the drop in elections in 2017 is an aberration connected to the 2016 Presidential and Congressional Elections and union uncertainty as to how to respond is unclear. What is clear is that the Quickie Election Rules are not the quick fix unions wanted, but instead make the conduct of elections by educated workers far more complicated as it gives employers at most about three weeks to educate workers while attempting to comply with the NLRB’s numerous procedural requirements. Perhaps the new Board will revise, if not reverse, the NLRB’s current procedures when the President fills current NLRB Chairman Philip Miscimarra’s seat sometime in 2018.