The National Labor Relations Board (NLRB) has been making a case that representation elections need to be put on a faster track. When the Board originally published their “ambush elections” proposed rule, their notion of an ideal timeframe between when a petition for certification and the actual election worked out to 10-14 days. Of course, employers were concerned about such a compressed schedule for a number of practical reasons, but it also violates a fundamental sense of fairness most Americans hold with regard to elections.

While the final rule did not truncate the election time period as much as the proposed rule, it does shorten it to somewhere in the neighborhood of 20-24 days according to some experts. Employers remain concerned about the timing of these elections, because they often are not aware an organizing campaign is going on until they receive notice the petition has been filed. At that point, the employer has some tough choices to make and different rules to follow about how and what they can communicate to their employees. In short, they have serious ground to cover in order to catch up – meanwhile, the clock is ticking.

As we anxiously await the NLRB General Counsel’s Summary of Operations report for fiscal year 2011 – which according to my research results has not been issued later than February 4th in the last ten years – I thought it would be good to go over some historical data about representation elections and paint a picture to show what’s really going on and why employers believe the Board’s ambush elections rule is a solution in search of a problem.

Over the ten-year period from 2001-2010, an average of 2,356 elections were petitioned for each year. Of that number, 89.9 percent of the petitions were agreed to by both parties. The median time it took from the time the petition was filed to the date of the election was 38.9 days. Finally, 93.8 percent were completed within 56 days – though in full disclosure I could not find data for 2001, so this number is really a nine-year average, but the yearly percentages for an election to be completed in 56 days ranged from a low of 91 percent in 2002 to a high of 95.5 percent in 2009. A chart is included below to illustrate these numbers.

   NLRB Representation Election Completion Rate Over the Last Decade
         
Fiscal Year Cases Election Agreement % Median Days 56-day %
2011        
2010 1790 92.1 38 95.1
2009 1690 91.9 37 95.5
2008 2085 91.8 38 95.1
2007 2080 91.2 39 93.9
2006 2296 91.1 38 94.2
2005 2715 89 39 93.6
2004 2537 89 39 93.6
2003 2659 88.5 40 92.5
2002 2871 86.1 41 91
2001 2842 88.2 40 N/A
10 year Average 2356 89.9 38.9 93.8

 

What I believe the numbers show is a vast majority of petitions and elections are handled in a timely fashion – rendering the need to ‘fast track’ election unnecessary. It appears the cases taking longer than 56 days are outliers and we can reasonably infer they represent more complex cases in which there are questions about who is eligible to vote, the make-up of the collective bargaining unit or some other complication – all of which should be resolved prior to the election being held. Employees deserve to have the information they need in order to make an important decision like joining a union and employers deserve to know the rules before the results of the contest have been decided.

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