NLRB’s Ambush Elections Latest Statistics

March 11, 2016

pic-employees-smThe National Labor Relations Board’s (NLRB’s) Ambush Election rule became effective on April 14, 2015 and implemented sweeping changes to union elections. Moreover, the rule 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, and prevents employees from getting full and complete information from both sides, as well as requires employers to disclose their employee’s personal contact information.

The latest data from the first nine months since the NLRB’s implementation of the controversial rules clearly demonstrates the impact it is having on both employers and their employees. The NLRB released quarterly representation case statistics on Feb. 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 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 percent, 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 percent 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 percent reduction. This statistic may be somewhat skewed, however, because of the enormous number of cases in the 90th 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).
  • Surprising to some, union win rates were down slightly overall to 64 percent (a 1 percent decline) and in Representation Cases (RC) to 68 percent (a 2 percent decline).
  • The election agreement rate is steady, up only slightly from 91 to 92 percent.

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.

The statistics are published on the NLRB’s website here.

NSBA has long been opposed to this rule, filing comments as far back as 2011, which detailed the unfair process and significant burden the rules pose for small businesses. Of primary concern with the ambush elections rule was the fact that unions can spend months or even years in advance of filing a petition to encourage employee support of unionization. The unions control when a petition is filed, giving them the upper-hand in planning and spreading information to the workforce. Employers bear the full brunt of a shortened timeframe which, in certain circumstances, could be—as shown in the new data—just 10 days following the filing of a petition. Additionally, the previous median time between a petition being filed and the election was only 38 days, and according to the new statistics has declined to 24 days. This further prevents employees from having unfettered access to information from both sides on the implications of a unionizing campaign before a vote would happen. This latest information shows the rule impedes that objective, and union elections are now being held at a faster rate after the ambush election rule has been implemented.