Legal notice

How big a threat have the NLRB's ‘ambush election’ rules proven for employers?

Michael Rybicki, Partner, Seyfarth Shaw LLP
Michael Rybicki, Partner, Seyfarth Shaw LLP

In 2015 the National Labor Relations Board made dramatic changes in its rules and regulations intended to make organizing efforts easier for unions and more difficult for employers to oppose. Since then, union organizing successes have improved, although probably not by as much as what unions hoped and employers feared.

The best-known change under the so-called “ambush election” rules is the dramatic reduction in the time between the filing of a petition and the holding of an election.

Under the new rules, the median number of days between the filing of a petition and the holding of an election has dropped from 38 days to approximately 23 days—a drop of more than two full weeks.

By reducing the period of time during which an employer could campaign, it was anticipated that union win rates would improve.

Batting average

To some degree they have, but not as much as hoped or feared. In 2015 union elections hit a five-year high with unions winning more than two-thirds of the votes. In 2016, unions won slightly less than two-thirds of the elections and, although full-year results for 2017 are not in, anecdotal evidence suggests unions continue to track at approximately the same win rate.

It should be noted, however, that there is clear evidence that the chances of a union victory improve markedly when the time between the filing of a petition and the holding of an election falls below the 23-day median.

Unions have done particularly well in elections involving fewer than 50 workers. According to the NLRB, the median size of bargaining units involved in elections has hovered in the mid-20s. Except at the major metros, most bargaining units at newspapers consistent of fewer than 50 workers.

Having said all of this, there has not been a flurry of organizing activity in the newspaper industry. In 2016, The NewsGuild (formerly The Newspaper Guild) won elections in editorial units at two Florida dailies and recently secured voluntary recognition at a couple of suburban papers. Additionally, the GCC/IBT won an election in a small New England pressroom.

This writer is aware of organizing efforts in the editorial departments of a large Midwestern metro and a medium-size daily on the West Coast that both appear to have fizzled out. Recent reports of ongoing organizing activity in the editorial department of the Los Angeles Times have made their way into print and on the web.
Things have been very different with respect to digital news operations, where more than 700 news staffers have been organized.

“Virtual” victories

Digital news operations organized by The NewsGuild include the Guardian US, Bloomberg BNA (Law 360), the Daily Beast, the American Prospect, and The New York Times. The Writers Guild-East has won organizing campaigns at Gawker, Huffington Post, Thrillist, MTV News, Vice Media, Think Progress and the Intercept, Salon, Fusion, Gizmodo Media Group, and a couple of other digital content providers that have since folded operations.

As we previously wrote in these pages, “[f]or all of the pieces written about new media developments, no one predicted the successful union organizing blitzkrieg of digital newsrooms that has taken place since 2015.”

Putting all of this into perspective, union organizing among traditional print employees has been limited in recent years, although digital news operations have been a different story. Further, there is reason to hope that worst of the rule changes (which are not limited to those discussed above) and related decisions of the Obama-era NLRB will be rescinded or reversed. For a variety of reasons, however, changes are likely to occur more slowly than many employers might expect.

Therefore, given that unions have been winning two-thirds of the elections that are held, avoiding an election in the first place and prevailing if a petition is filed remains both challenging and matters of importance.

The takeaway

The “ambush election” rules have not resulted in a dramatic increase in union victories or reversed the steady decline of unions in the private sector. They have, however, made responding to union organizing more difficult and stressful for employers. While there is some hope for relief under a reconstituted National Labor Relations Board, the fact remains that unions win the majority of elections that are held. Therefore, employers ignore the risks at their peril.