By Nelson Cary and Thomas Loeb
On December 13, the NLRB announced significant changes to its election representation procedures. The final rule will be published tomorrow, and become effective on April 16, 2020. The net effect of the rule is to substantially alter the so-called “quickie” or “ambush” election rule adopted by the Obama NLRB in 2014. The NLRB started this process just about two years ago when it issued a request for information about the election rule.
The main thrust of the changes to the rule involve extending the time periods allowed for the parties (and primarily the employer) to take certain actions required in order to process an election petition. The result will be to slow down the election process and, the NLRB says, to allow for more orderly litigation of contested issues in an election.
Labor professionals who have extensive dealings with the NLRB will want to read the rule in its entirety, but here is a sampling of some of the more significant changes to the process:
- The initial hearing will be scheduled 14 business days from the notice of the hearing (previously, the hearing was 8 calendar days after the notice of hearing);
- The NLRB has retained the requirement that the employer post a notice of employee rights, but gives the employer 5 business days to do so (previously, the notice needed to be posted within 2 business days);
- The NLRB has also retained the requirement that the non-petitioning party (typically, the employer) file a Statement of Position, but has given that party more time to file it, up to 8 business days after notice of the hearing (previously, it was due 1 day prior to the hearing);
- The NLRB has added a requirement that the party filing the petition (typically the union) file a Statement of Position responding to the non-filing party’s petition 3 business days prior to the hearing (previously, the filing party needed only to orally respond to the Statement of Position at the beginning of the hearing);
- The NLRB will now permit parties to litigate important eligibility questions, like supervisory status and who can vote in the election, at the initial hearing (previously, the NLRB had severely limited the ability to litigate these issues); and
- The regional director may not schedule the election sooner than 20 business days after the date the election is directed, which in practice is at least a week after the filing of the petition (previously, regional directors were required to schedule the election “for the earliest date practicable”).
These changes, and others in the final rule like them, will provide parties against whom petitions are filed with more time to respond to the issues a union organizing (or decertification) petition raises. Overall, the intent of the rule appears to be to return the processing of election petitions to the timeline in place prior to the 2014 rule.
While the majority asserts that the final rule is procedural, and therefore exempt from any notice and comment requirement, the final rule’s significant changes might be considered as substantive in a future court proceeding. Indeed, Member McFerran (D), whose five-year term ended yesterday, took substantial issue with the NLRB’s decision to forgo the notice and comment rulemaking process in her lengthy (100+ pages) dissenting opinion. McFerran also took issue with the substance of the NLRB’s final rule, summarizing it as an intent “to dramatically increase the timetable for conducting representation elections by imposing unnecessary delay at each stage of the representation case process.”
As was the case with the 2014 rule, these substantial changes from current practice will clearly have an impact on how employers (mostly, since employers are typically not the filing party) prepare for and lawfully respond to union organizing activity. Thus, labor professionals will want to read up on the details of the rules to determine whether changes should be made in how to prepare in the event of a representation petition.
Considering the NLRB’s decision to publish this rule without engaging in the notice and comment rulemaking process, labor professionals will also want to keep track of any litigation that might affect the rule’s implementation in the coming months. We will monitor and report on this blog any of those filings.