Wyatt Employment Law Report


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New Data Confirms Fears about NLRB “Ambush” Election Rule

By George J. Miller

When the National Labor Relations Board implemented its new union election rule in April of this year, the prediction was that the new procedure would shorten the time between the date of the filing of the election petition and the date of the election, something which labor unions and their supporters favored but which the business community opposed.  Those who opposed it referred to it as the “ambush” election rule.  Well, the prediction was correct.  In a recent newsletter, “Democracy at Work,” Region 9 of the NLRB reported that from October 2014 through April 2015, the median number of days between the filing of the petition and the date of the election was 41 days, while between May 2015 and early September 2015, after the new rule went into effect, the number had dropped to 24.5 days.  This is more than two full workweeks less for unions and employers to campaign, which gives unions an advantage, since they have been actively organizing employees—often without the employer’s knowledge–since well before the election petition is filed.  Experts who have studied union elections report that the outcome is usually determined by the one-third of employees who are undecided at the outset.  Twenty four days is not much time to educate employees about all of the issues in a campaign, some of which are common to all campaigns and some of which are specific to each campaign.  The reduced time available to campaign means that non-union employers will need to be more proactive in their efforts to remain non-union and not wait until a campaign gets started, when it could be too late.