Hunton Employment & Labor Perspectives

One year has passed since the National Labor Relations Board issued its controversial “ambush” election rules, and as expected, the rules have caused a substantial reduction in the time between a union’s filing of a petition and the conduct of the election.

But in a surprise to many employers, the rules so far have produced virtually no change in the number of union election petitions and union victories. Many had predicted that the shorter campaign period would result in more unionization.

This summation comes from the NLRB’s release of election-related statistics comparing results during the first year under the new rules (April 14, 2015 through April 14, 2016) to results of the previous year (April 14, 2014 through April 14, 2015).

In the past year, an average of 23 days elapsed between the union’s filing of a petition and the conduct of the election. In the prior year, that span was 38 days. One can attribute this largely to the Board’s rule that pre-election hearings are to be held eight days after its issuance of the Notice of Hearing. Unlike in the past, those hearings no longer include lengthy evidentiary hearings and briefings on whether certain individuals should be permitted to vote.

A shorter period has meant less campaign time for employers, most of whom decried the fact that before filing a petition, a union could take months in pressing its case to employees – leaving employers “ambushed” under the new rules because they had much less time to counter the unions.

So far, employers have battled effectively despite their condensed campaigns. In the past year, unions and employees filed 2,144 representation election petitions, an increase of only three over the previous year. The result? Unions won 70 percent of these representation elections in the past year after winning 71 percent the year before.

It is difficult to speculate why the ambush rules have had no effect on the results. One possible explanation is that employers have reacted to the rules by taking more aggressive preemptive human-resources measures to ensure their employees achieve job satisfaction and are less prone to union solicitation.

Stay tuned. As unions become more familiar with the rules, they could rack up more victories. Employers must continue to diligently push their message to employees even without the known specter of a union.