On the heels of the Texas court’s ruling earlier this week, and with more than a month of experience with the NLRB’s new election rule behind us, I thought it would be interesting to find out what the data actually shows is happening under the new rule. So, yesterday I turned to Susan Connelly of PTI Labor Research (PTI) to get her insights on that question. Susan, as the Executive Director of PTI, collects and analyzes petition and election data from the NLRB on a daily basis. Susan told me that PTI’s databases contain 25 years of NLRB case filings. Thus, the data is a helpful source to identify trends. Here is what Susan had to say:
| Nelson: | We realize there isn’t a lot of data yet, but we have been living with the new rule for a month now. One of our predictions—and a prediction of many other labor law practitioners —was that the rule would shorten the average time between petition and election. What does the data say about that? |
| Susan: | Prior to the new rules going into effect, the median number of days from petition to election was 38 calendar days. Law360 reported that the median number of days for the first month under the new rules was 23 days. More alarming than this though, in one of the cases we were following, the company representatives were not informed of the exact election arrangements until the week prior to the vote. Statistics have shown us that the higher the percentage of those who are eligible to vote participate in voting, the less likely it is that the union prevails in the election. Having such a short time to ensure voters are fully aware of the voting arrangements, especially for large bargaining units, puts even more of a burden on management to try to encourage the highest voter turnout possible. |
| N: | Have you seen any data to suggest that unions are becoming more active in filing more representation petitions, thus taking advantage of the new rule to try to organize new groups of employees? |
| S: | Absolutely. The first month under the new rules (April 14 to May 14, 2015) saw a whopping 266 union certification petitions filed with the NLRB (“RC” petitions). This was up 24% from the previous five years’ average for the same time period. We have seen various reports of the numbers of petitions filed in recent weeks and the numbers seem to be slightly different from one source to the next, though all show an increase in activity. We were able to verify our numbers with the NLRB’s website (www.nlrb.gov). If your readers have not viewed this website recently, I would recommend that they take a look at the cases filed to see the most active industries, areas and unions. |
| N: | One of the other worries about this rule was that the shorter time period might actually cause more disputes and result in fewer stipulated elections. Is there any data to suggest that we should still be concerned about this? |
| S: | Early data is showing us that the stipulated election rate is actually increasing as opposed to decreasing. In two of the cases we were following, the company representatives feared that going to the hearing could result in an even shorter time frame, or the same time frame but the company not knowing the particulars of the voting arrangements until late in the process. It will be interesting to see how the new rules affect certification rates after the vote, but that will not be known for some time. |
| N: | Finally, with the decision from the Texas federal court earlier this week, chances of an early knock out of the new election rule seem increasingly slim. Thus, I think our readers would be very interested in what if anything you can tell us about your predictions for how this rule will impact the election process? |
| S: | We predict that as time goes under the new election rules that the Board will reduce the average time from a petition to election even further from what we have seen in the first month. Our historical research has shown us that the shorter the time from the petition to the election, the more likely it is that the union prevails in the election. Being prepared ahead of time for a possible organizing attempt is imperative – now more than ever. Companies should be examining their vulnerability, wages and benefits in comparison to the market, policies, and potential bargaining units. The most important aspect of preparedness is to train supervisors and managers ahead of time regarding recognizing and responding to organizing activity. |