Hunton Employment & Labor Perspectives

We previously have discussed that, as expected, the implementation of the NLRB’s ambush election rules in April 2015 considerably shortened the average time between the date of a petition being filed by a union and the date of election.  This change substantially impacts the employer’s ability to conduct an effective campaign in the event of a union petition.

The data from the first nine months since the NLRB’s implementation of the controversial rules clearly demonstrates the impact of the new rules.  The NLRB released quarterly representation case statistics on February 25, 2016 comparing the results for the nine months since the new election regulations went into effect (April 14, 2015 – January 14, 2016) with the comparable time period in 2014-2015 when the old election regulations were still in use.

• The numbers (which if consistent with past NLRB policy are medians) continue to reflect the trends we have noted previously, as well as a couple of interesting results: The time between the election petition and
  • the pre-election hearing decreased from 13 days to 10 days – just three days over the 7 day target under the new rules.
  • an election agreement dropped by 28%, from 11 to 8 days.
• The overall days between the petition and the election is now 24 days, a reduction of 14 days or 37% from the time under the old rules.
  • In stipulated elections (no hearing held) the time was even less (23 days), 15 days less than under the old rules.
  • In directed elections (hearing held) the reduction in time was the most dramatic – 34 days versus 66 days under the old rules – a 51% reduction. This statistic may be somewhat skewed, however, because of the enormous number of cases in the 90^th percentile of directed elections which are over 100 days – many far over.
  • The number of days was slightly higher in RD (decertification) cases (25 days) and RM (employer petition) cases (28 days).
• Somewhat surprisingly, union win rates were down slightly overall to 64% (a 1% decline) and in RC cases to 68% (a 2% decline).
• The election agreement rate is steady, up only slightly from 91 to 92%.

As we have previously emphasized, as a result of these new rules, employers should have a response and campaign procedure in place long before a representation petition approaches management’s door.