We have shared our ongoing concern over the NLRB’s new ambush election rules, and recent statistics show that these concerns are warranted.
The impact of the new election rules – fondly called the “ambush” election rules – is even worse than anticipated. During the first month the rules were in effect, there was a 17% increase in election filings over the same period last year and a 32% increase from the last month under the old rules. Some of the increase may be attributed to unions holding their petitions until the new rules came out, but employers should still expect to see more union activity and more petitions.
The increase in petitions is worrisome for employers, but not as worrisome as the shortened timeframe for the elections. The time between when a union files a petition with the NLRB seeking an election to the time when the election occurs used to average about 38 days. The ambush elections decrease this time to as few as 11-15 days. Data from the NLRB states that the median time between filing a petition and an election is down to 23 days. This means that on average, employers have just over three weeks to put together a campaign to defeat the union or be stuck with a unionized workforce. Of course, some employers have much less than 23 days.
Additionally, all of the added requirements and restrictions of the ambush election rules have successfully deterred employers from challenging the lawfulness of petitions. Only 4 of 280 petitions went to a hearing on their lawfulness, which means 98.5% (instead of the historical 80%) of the petitions resulted in a stipulated election agreement.
The accelerated timeframe to election is particularly problematic for employers as it decreases the amount of time they have to inform their employees about the upcoming elections. The shorter timeframe makes it less likely employees will participate in the election, which ultimately increases the likelihood of the union winning the election. It is important now more than ever that companies are ready to combat a union campaign even before receiving notice of the election petition.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.