Hunton Employment & Labor Perspectives

As expected, the implementation of the NLRB’s ambush election rules has spurred unions to initiate organizing campaigns across the country.  As discussed in our previous posts and a webinar hosted by the Firm, the new rules make it easier for unions to organize employees through an expedited election process, and makes it possible for elections to be held 11 to 12 days after the petition has been filed.  Recently released data confirms that a significant increase in petition filings occurred after the April 14, 2015 implementation date of the new ambush rules.  To summarize, an average of approximately 42 petitions were filed per week for the month of March to April 13th.  From April 13th to the beginning of May, the average number of petitions filed per week shot up to approximately 60.  Such averages are deceptive, however, in that the number of petitions filed per week has increased every week since the implementation date, rising to nearly 80 petitions filed for the last week of April.

Moreover, a random sampling of approximately 42 representation petitions filed since the implementation date reveals that the new average time between the date of petition filing and the date of election is 23.5 days. This new average represents a 14.5-day decrease in time compared to the pre-implementation date average of 38 days. The sampling study also revealed the following:

• A high of 35 days between the date of filing and the date of election
• A low of 10 days between the date of filing and the date of election
• 3 cases with 13 days or less between the date of filing and the date of election
• 7 cases with 19 days or less between the date of filing and the date of election

Although such activity from unions and the Board was expected, the data communicates no less that employers must be as vigilant, proactive and prepared as ever to campaign effectively within the constricted time period.  Although the new average campaigning period of 23.5 days appears generous compared to the worst case scenario of an 11-day campaigning period, the new average is temporary and deceptive. Within the span of approximately three weeks, unions and the Board have decreased the average campaigning period by a near 40% when compared to the previous average of 38 days. Given the recent implementation of the ambush election rules, it is fair to assume that the new 23.5 day average will be further contracted in the coming weeks and months.  In short, employers should have a response and campaign procedure in place long before a representation petition approaches management’s door.