A couple weeks ago we provided anecdotal reports from several NLRB Regional Directors that after one month the new Ambush Election Rules union elections were being held in considerably less time, with the Regional Directors claiming elections were being scheduled between 25-30 days. Last week, according to BNA’s Daily Labor Report and Law360, the NLRB released national results of the first month showing that the impact was worse than anticipated.
More Union Petitions Under Ambush Elections Rule
Between April 14 (the day the rules when into effect) and May 14, 280 representation cases were filed. This was a 17% increase in filings over the same period in 2014 and a 32% increase from the last month under the old rules. While some of the increase is likely attributable to unions strategically waiting for the new rules to go into effect, employers can certainly expect increased union activities and more petitions.
Election Period Cut by Over 40% - Just 23 Days
Even more troubling than the increase in petitions is the dramatic decrease in time to respond to the petitions. According to the NLRB’s first month results the median time between the filing of a petition and an election date has been cut down to only 23 days. This is over 40% less time than the prior median of 38 days and provides employers just over three weeks to respond to the petition and mount a campaign. Of course one third of this median time would be spent preparing for a hearing and collecting/providing the information now required by the Board.
The additional information, requirements, and restrictions of the new rules may be a reason that almost all of the petitions have resulted in stipulated election agreements where employers agree to forgo a hearing and stipulate to the election issues, including date. In fact, the NLRB reported that of the 280 petitions only 4 went to a hearing. That means in an astonishing 98.5% of all petitions the employer forwent their rights to a hearing and agreed to election issues with the union. This is a considerably higher percentage than the typical 80% or so of petitions that historically have resulted in stipulated election agreements and suggests that employers are either apprehensive about hearings under the new rules and/or being threatened with even shorter election times if they proceed to a hearing.
In the 4 cases where a petition went to a hearing two of the cases resulted in a directed election in 23 days from petition filing, with one election directed in 26 days and the other 30 days. These election dates are far sooner than the median length of 59 days under the old rules.
It should not be over looked that 23 days is a median time frame and, as noted, where cases went to a hearing, 23 days was the earliest date ordered. This means that of the 276 petitions which resulted in stipulated election agreements many had elections in less than 23 days.
Again, the official results after the first month seem even worse than expected for employers, as the increasing number of them that are the target of union organizing will have very little time to prepare.
Management Missives
As we have advised, we recommend employers concerned about union organizing prepare now:
- Examine your workforce for potential vulnerability to union organizing, including wage and hour violations or uncompetitive wages or benefits.
- Review and update workplace policies that become relevant during union organizing, such as solicitation/distribution, electronic communications, and social media policies.
- Assess your workforce for potential bargaining unit issues, such as identifying supervisors and which employees share a “community of interest.”
- Train your managers and supervisors to recognize the early warning signs of union organizing and on how to respond lawfully to union campaigns.
- Contact legal counsel with any questions or for any assistance to ensure that you are prepared to respond to an organizing campaign.