Labor Board Rule to Speed Up Union Elections Shows Mixed Results

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By Hassan A. Kanu

The National Labor Relations Board’s “quickie” election rule has sped up workplace unionization drives, but it’s not necessarily giving unions an unfair advantage, as some predicted.

The new representation election rule was implemented in 2015 in an effort to streamline the union elections process. It has indeed had some of the expected effects that caused employers grief when it was announced, at least according to data from Fisher Phillips.

Union representation elections on average were held 24 days after the filing of a petition last year, down from 39 days the year before the rule took effect, the management-side firm said. Unions also tend to win more in the quickest elections. In 131 of the fastest elections in the first two years since the rule—those lasting two weeks or less—unions won 82 percent of the time.

Despite the quicker pace, unions continued to win elections about 67 percent of the time overall after the rule was passed, a less than 1 percentage point increase. Additionally, the number of workers organized in 2016 was the lowest in four years.

“Having a union is a complicated thing sometimes, and employees need to know what they’re getting into,” Steve Mitchell, a Fisher Phillips attorney, told Bloomberg BNA May 2. “Sometimes it’s just better to have some time so they can be educated and make a good decision.”

Some “71 to 87 percent of employers hire consultants to manage counter-organizing campaigns” when workers try to unionize, the Labor Department said when it rolled out a separate “persuader” rule during the Obama administration. That rule, which would have forced employers to disclose more information about union avoidance consultants, was blocked by a federal court.

Faster Pace ... but Win Rates Steady

Business attorneys have long argued that quicker election times make it tougher for workers to make an informed decision about unionization, and more likely to succumb to pressure from labor groups.

“To me, the high winning percentage in those case indicates that the purpose behind this, which was to put a process in place to move elections faster, appears to be successful,” Steve Mitchell, a management-side lawyer in election cases at Fisher Phillips, told Bloomberg BNA.

“I think employers need to go in understanding that they don’t necessarily have to agree to a very quick election,” Mitchell said. “They can use the time to educate employees and make sure they make good decisions.”

Labor Lawyer: ‘Unwarranted Rhetoric’

Labor advocates, on the other hand, have said the rule properly makes it more difficult for employers to use stalling tactics to stop a representation drive.

Celine McNicholas, labor counsel at the Economic Policy Institute, disagreed with the management-side lawyers’ interpretation of the data on win rates. She also had a different take on the purpose of the rule.

The rule was designed as “a modest update of the procedures” to accommodate modern technology like online petition filing and providing emails instead of just mailing addresses, she said.

McNicholas said she looked at the NLRB’s own data. “I would point out that the union win rate looks like 65 percent in the year after the rule, and 66 percent in the year before, so that’s not exactly in line with what’s being said” by Fisher Phillips, McNicholas told Bloomberg BNA.

The numbers also include stipulated elections, where workers and their employer agree to hold an election based on a certain timeline. “The vast majority of elections proceed that way,” and some of the fastest elections happen based on a stipulation, “so that’s gonna be the lion’s share of the data,” McNicholas said.

In any case, there’s barely a 1 percentage disparity in the attorneys’ interpretation of the data. Petition elections appear to be moving at a faster rate, but unions haven’t benefited significantly from the rule in terms of win rates.

“The rhetoric around the rule certainly billed it as a great deal more than it was, and I think that was without warrant,” McNicholas said. “It wasn’t earth-shattering in any way.”

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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