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July 14, 2015

Lessons Learned from the First Months of the NRLB's "Quickie Election" Rule

The National Labor Relations Board's new "Quickie Election" rules, meant to decrease the amount of time between a union's filing of a petition for representation (also known as an RC petition) and the subsequent election, has been in effect since mid-April and the early results are instructive for all employers – regardless of their workforce's union status.

Representation elections have indeed been occurring more quickly. The average period of time between filing an election petition and conducting an election has decreased by 36% to an average of 24 days, as opposed to the previous average of 38 days. Individual NLRB regions, however, have responded with varying degrees of haste in adjusting to the new rules: election periods in some regions were reportedly as long as 32 days in some instances, but as short as 14 days in others.

The new rules require petitioning unions to serve the RC petition on the employer at the time of filing. In response, an employer must timely file a Statement of Position and a complete and accurate employee list. A well-considered Statement of Position and employee list by the employer is critical, as any basis for opposition to the election petition (such as the inclusion of ineligible employees or the selection of an inappropriate bargaining unit) must be articulated in those submissions or risk being barred from consideration entirely. 

Filings for representation petitions have also modestly increased. In the first month after the new rule was put in place, the NLRB saw a spike in filings for representation petitions. However, that figure has leveled off considerably since then. Interestingly, the increase in petitions was most acute for proposed bargaining units consisting of fewer than 10 employees, which may reflect an effort by pro-labor forces to focus on these small groups, or may simply be a consequence of smaller groups being easier to mobilize and take advantage of the new expedited timelines. 

Also of note is the fact that the new rules have not materially affected union "win" rates, that is, how often the petitioning union wins a representation election. 

All of this means that employers must now be better prepared than ever for a potential representation election petition. Employers should start to develop a response plan well before facing an imminent petition, to include an analysis of which employees should be excluded from a proposed bargaining unit as supervisors, managers, confidential or temporary employees and the extent to which groups of employees do or do not share a "community of interest." Such a plan should also include carefully considered messaging to be provided to employees regarding the decision to unionize. With a shortened timeline, and de facto standards still in flux, a failure to plan for an RC petition is a plan to fail.

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