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NLRB’s new election rules not favoring unions

March 8th, 2016  |  David Stephanides

The National Labor Relations Board has released comparison statistics for the first three quarters following implementation of its controversial revised election rules governing representation-case procedures, which became effective April 14, 2015. Although many believed the new “ambush” election rules would tilt in favor of unions, the statistics, at least at this point, do not bear out that concern. The Board’s union representation data provides a comparison between the period April 14, 2015, through January 14, 2016, and the same nine-month period the year before.

The Board noted that the new representation case procedure rules “were designed to remove unnecessary barriers to the fair and expeditious resolution of representation cases, simplify representation-case procedures, codify best practices, and make them more transparent and uniform across regions.” Addressing what it saw as discrete, specifically identified problems, the updated rules were aimed at streamlining Board processes; increasing transparency and uniformity across regions; eliminating or reducing unnecessary litigation, duplication, and delay; and modernizing the Board’s rules on documents and communications in light of current communications technology.

Petitions filed. The statistics show that during the 9-month period following implementation of the new rules, fewer petitions were filed (2012) compared to the same period the previous year (2097). However, there were more petitions filed seeking certification of a representative (RC) after the new rules were implemented (1624) compared to the year before (1608). During the three quarters following the effective date of the new rules compared to the same period the prior year there were fewer certification petitions (RD) (255 versus 334); fewer majority support certification petitions (RM) (40 compared to 36); and fewer unit clarification petitions (UC) (54 versus 57).

Decreased time between filing and election. During the three quarters following implementation of the new rules, the time between the filing of a petition and the election decreased for all types of election cases. The median number of days between the filing of the petition and the election after the new rules applied compared to the same period before the new rules was 24 versus 38 for RC petitions; 25 versus 37 for RD petitions; and 28 versus 38 for RM petitions.

The median number of days between the filing of a petition and a pre-election hearing was also shorter (10) during the three-quarter period after the new rules were implemented compared to the same period the previous year (13). The time between the petition filing and the election was also shorter where there was an election agreement (23 versus 38) and even more dramatically so when there was a directed election (34 compared to 66). The median number of days between the filing of a petition and certification was also reduced after the new rules were implemented (35) compared to the same 9-month period the year before (49).

Union win rates. Interestingly, the union win rates were not much impacted by the new representation case procedure rules, with the overall union win rate dropping slightly during the three quarters after the new rules were implemented compared to the same period the year before (64 percent versus 65 percent, respectively). As to case type, the union win rate was slightly lower in RC cases after the new rules compared to before (68 percent versus 70 percent). The union win rates remained the same after the new rules were implemented compared to the same period the year before for RD cases (39 percent) and RM cases (29 percent).

Other developments. The Board posted two other notable statistics. First, the election agreement rate was slightly higher after the new rules were effective compared to the same nine-month period the year before (92 percent versus 91 percent). Second, the number of petitions that were blocked by unfair labor practice charges was substantially reduced after the new rules applied (82 compared to 144).

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