A Quick Update on Speedy Election Rules (Hint: The Predictions Have Come True — Somewhat)

6 October 2015 Labor & Employment Law Perspectives Blog

The National Labor Relation Board’s new election procedures became effective April 14, 2015. You may recall that the new rules were largely designed to shorten significantly the time between a union’s filing of a petition for election and the voting. Businesses cried foul, worried that a shorter time period between the petition filing and the election would unfairly minimize the employer’s opportunity to convince its workforce of the wisdom of its views that a union is not needed and would not be helpful. Some called these the “speedy election rules,” and critics called them the “ambush election rules.”

We wondered if the predictions about the new rules have proven to be true or not. We compared petition and election data for the first four full months (May through August) under the new rules (the 2015 Period), to that same data from the same four months of 2014 (the 2014 Period). Here is what we found:

a. Have the new rules resulted in faster elections? Yes, significantly.

b. Have the new rules resulted in more petitions and elections? Yes, but barely.

c. Have the new rules increased unions’ win rates in elections? Yes, but not by much.

Speed of Elections

The average time period between the filing of a petition and the election has fallen over 31 percent:

2014 Period: 38 days from filing to election

2015 Period: 26 days from filing to election

Number of Petitions

The number of petitions filed by unions has increased by 2.5 percent:

2014 Period: 747 petitions were filed

2015 Period: 765 petitions were filed

Success Rates of Unions

The union success rate has increased about 4 percent.

2014 Period: Unions won 229 of 333 elections = 68.8 percent

2015 Period: Unions won 260 of 363 elections = 71.6 percent

The data show us that the number of cases and the unions’ win rates have not changed significantly. The biggest change is in the shorter campaign period that an employer can use after learning of a filed petition to convince its employees to vote “no.” But any adverse impacts of that shorter campaign period can be mitigated with a more proactive strategy and effort. Employers that were previously content to stay mum on unions, figuring that they can always educate employees later might instead consider some of these steps to take a more proactive approach:

  • Train supervisors on the company’s preference to remain union free, how to spot signs of potential organizing activity, and how to talk with employees legally about unions
  • Increase efforts to determine issues of highest concern to employees and implement improvements
  • Identify bad supervisors who are alienating or angering employees and jettison those from the management team
  • Confirm that the company’s wages and benefits are competitive
  • Provide a hotline or other complaint mechanisms that really work and demonstrate that employee concerns are heard and addressed

You might also consider working with your labor counsel to proactively do some of the work that must otherwise be done at breakneck pace when a petition is filed. It could also pay great dividends later to work with your labor counsel to assess and perhaps modify your organizational structure to provide some protection from micro-units. Micro-units plus speedy elections are a very formidable foe for employers that wish to remain union free. Some proactive work should be done before the employer gets ambushed.

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