As we approach the midway point of the Biden Administration, we will take stock of the lay of the land at Biden’s DOL, reviewing the initiatives the Department and its agencies have focused on in Year 2 and evaluating how they have fared in driving change at DOL, EEOC, NLRB, and OSHA. We will also assess those agencies’ rulemaking, policymaking, and enforcement efforts; make predictions about what employers can expect from the Biden Administration’s DOL in the second half of President Biden’s presidential term; and assess the impact of the mid-term elections.
What should come as no surprise to any management or labor attorney, the National Labor Relations Board (NLRB) has stated that union elections are taking place twice as fast under the new NLRB Representation Case Rule changes, also known as the “ambush election” rules.
As reported by Politico’s Morning Shift today and according to an NLRB PowerPoint presentation collecting relevant data, the median time between the filing of an election petition and an NLRB-directed election was 32 days, a decrease from 67 days during the same period in 2014. In addition, the median time between the filing of an election petition and the pre-election hearing was 9 days, a decrease from 13 days.
Interestingly, despite the compressed time from petition to election, the unions are not winning elections in higher percentages. According to the NLRB’s data, since April 2015 when the election rule took effect, unions won 68.8 percent of elections, compared to 69 percent during the same period in 2014. The number of petitions filed is also unchanged: 1,446, compared to 1,442.
This begs the question whether the ambush election rules are hurting employers, or whether employers have taken heed and begun preparing for any organizing well before any petition is filed. It also leaves open the question whether labor unions have changed their strategy to file more election petitions in light of the new rules, rather than relying on card check and neutrality agreements as they have for the past several years. In New York City, for example, the Hotel Trades Council filed election petitions at 4 hotels in Manhattan over a few short months this summer, and won each of those elections with a large majority. The bargaining units were relatively small – less than 50 employees at each hotel – and focused primarily on room attendants and housemen.
Despite the NLRB data, in speaking with my contacts and fellow labor attorneys, we are all seeing a significant uptick in representation petitions across all industries and across the country, which means that employers must be prepared to respond to a petition before any organizing campaign can occur. Management training and understanding the rules of the game well in advance could be the game-changer in how elections are won under the new rules.