On December 13, 2019, the National Labor Relations Board (“NLRB” or the “Board”) issued a proposed rule that will modify the procedures governing NLRB elections. The proposed rule will extend deadlines and add procedural steps to the streamlined “quickie election” rules that were issued by the Board in 2014. The new rule was published on December 18, 2019 and will become effective on April 16, 2020.
The new rule provides a more relaxed timeframe for NLRB elections as compared to the expedited procedures put in place by the NLRB in 2014. That 2014 procedure, often referred to as the “ambush” or “quickie” election process, was criticized due to the minimal time it left employers to respond to union organizing and election petitions. The NLRB’s Chairman, John F. Ring, said of the new rule: “[t]hese are common sense changes to ensure expeditious elections that are fair and efficient. The new procedures will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.”
Below is a summary of the most significant changes to the NLRB’s representation case procedures:
- The pre-election hearing will generally be scheduled to begin 14 business days from the date of service of the Notice of Hearing.
Under the 2014 procedures, pre-election hearings are generally scheduled only 8 calendar days from the date of service of the Notice of Hearing. Employers will now have more time to meet pre-hearing obligations, obtain counsel, prepare for the hearing, and draft a Statement of Position.
- Employers will be required to post and distribute the Notice of Petition for Election within 5 business days after the date of service of the Notice of Hearing.
The 2014 procedures provide that employers must post and distribute the Notice of Petition for Election within 2 business days after the date of service of the Notice of Hearing.
- Employers will be required to file and serve the Statement of Position within 8 business days after service of the Notice of Hearing.
Employers are currently required to file and serve the Statement of Position 1 day before the opening of the pre-election hearing.
- The petitioning union will be required to file and serve a responsive Statement of Position within 3 business days prior to the hearing.
The petitioning party is required to respond orally to the Statement(s) of Position at the start of the pre-election hearing under the existing 2014 procedures. This modification will transfer some of the pre-hearing burden back onto the union that petitioned for an election.
- Disputes concerning unit scope and voter eligibility, including issues of supervisory status, will be litigated at the pre-election hearing and will be resolved by the Regional Director before an election is directed (unless the parties agree otherwise).
Under the 2014 procedures, such disputes are not ordinarily litigated or resolved before an election is conducted.
- The parties will have a right to file a post-hearing brief with the Regional Director within 5 business days following a pre-election hearing and post-election hearing.
Parties currently can only file such briefs if they receive special permission from the Regional Director.
- Absent a waiver by the parties, the Regional Director will not schedule an election before at least 20 business days after the date of the direction of election.
The Regional Director is simply required to schedule the election for the earliest date practicable under the 2014 procedures.
- Employers will have 5 business days to furnish the required voter list following the issuance of the direction of election.
Employers have just 2 days to furnish the required voter list under the 2014 procedures.
- The Regional Director will no longer certify the results of an election if a request for review is pending or before the time has passed during which a request for review could be filed.
The 2014 procedures require the Regional Director to certify election results despite the pendency or possibility of a request for review.
These changes will be welcomed by employers who have dealt with election petitions governed by the 2014 “quickie election” procedures.
This alert does not purport to be a substitute for advice of counsel on specific matters.
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