The NLRB Election Rules One Year Later: What does the Data Show?
By Matt Lynch
Shareholder
Sebris Busto James
Original Publish Date: April 5, 2016
The NLRB Election Rules One Year Later: What does the Data Show?
On April 14, 2015 the National Labor Relations Board (NLRB) issued its final, “quickie” election rule that made significant changes to how union elections occur. The rule was designed to “streamline” election processes by reducing the time between the filing of a petition and the election. It instituted new rules on the filing requirement, reduced greatly the acceptable reasons to hold a pre-election hearing to resolve unit and supervisory disputes prior to an election, gave a petitioning union access to employee personal contact information, and created shortened timeframes to hold a hearing and the election. Nearly a year has gone by since the rules went into effect, so what has been the impact of the new rules?
The NLRB published data on February 25, 2016 covering the first three quarters following the implementation of the new rules. The data compares the results in key metrics for the nine month period following the date the rules went into effect (April 14, 2015 to January 14, 2016) with the same period in 2014-2015 . Predictably, the data shows significant changes to the election process, most notably the reduction in time between the filing of the petition and the election.
Here are the key data outcomes:
- The days between the filing of the petition and the election reduced from an average of 38 days to 24 days, a reduction of 14 days. When the parties stipulated to an election in lieu of a hearing, the period of time to an election was an average of 23 days.
- In cases in which a hearing was held, the time to an election went from 66 days under the prior rules to 34 days, a decrease of over 50 percent.
- Decertification petitions declined 24 percent, from 334 to 255, and the number of days to an election was 25.
- Union win rates declined slightly in representation cases to 68 percent (a 2 percent decline). Still, the union win rate is near an all-time high.
The data validates the prediction of many before the rules went into effect, that there would be a drastic reduction in time for employers to prepare for the election. The data bears out the need for employers to take preventive measures that are designed to keep staff engaged and aligned with management goals before an election petition is filed. After a petition is filed, employers will need to act quickly to secure legal counsel and to develop a quick and effective campaign. There is no time on the side of employers.
Curiously, the data appears to show that the new rules are an impediment to employees who wish to remove a union. It is unclear why this is the case. One reason could be the new, more formal filing requirements that demand strict adherence. Unions with access to counsel, and which are in the business of organizing, are likely not fazed by these requirements when they file petitions to represent employees, while employees wishing to decertify a union but who are not adept with the rules may find them daunting.
The numbers are a clear indication that employers have an uphill struggle in combating a union organizing effort. When coupled with new, tighter restrictions on employer speech before and during organizing campaigns, the new rules are making the effort to remain union-free more difficult than ever before.
Matt Lynch is a shareholder with Sebris Busto James. Matt represents private and public sector health care and other employers in all aspects of labor relations, including in collective bargaining, grievances and labor arbitrations. He has handled many cases in front of the NLRB and PERC, and also advises employers on day-to-day and strategic employee relations issues, including discipline and discharge, employee leaves, employment agreements, policy development, handbooks, wage and hour and discrimination. Contact Matt at mlynch@sebrisbusto.com or 425-450-3387.