The National Labor Relations Board (NLRB) recently announced new rules for representation case procedures which will come as welcome news to employers.
Many of the changes revise the 2014 Obama-era Board’s so-called “quickie” election rules which imposed tight procedural deadlines and compressed timelines for scheduling elections. Relaxing many of these key deadlines should make it easier and less stressful for employers to respond, and should allow for issues presented by the petition to receive more careful review.
The key changes to the representation procedures include:
Scheduling of Pre-Election Hearings
Pre-election hearings will now generally be scheduled 14 business days from the notice of hearing. NLRB Regional Directors will also have discretion to postpone pre-election hearings for good cause. This change will allow for a more thorough review of and preparation for relevant issues to be presented at the hearing.
Under the current rules that will be replaced (we will call them the “old rules”) pre-election hearings were scheduled for 8 days from the notice of hearing.
Posting Notice of Petition for Election
Under the new rules, the employer will be required to post and distribute the Notice of Petition for Election within 5 business days after being served with the notice of hearing.
Under the old rules, this posting had to be up within 2 business days.
Statement of Position Deadline
Non-petitioning parties – which typically are employers responding to union election petitions – will have 8 business days to serve and file the statement of position from receipt of the notice of hearing. Additionally, Regional Directors will have the discretion to grant an extension to serve and file the statement of position.
Under the old rules, employers had the onerous task of serving and filing the statement of position by noon one day before the pre-election hearing – usually 7 calendar days after being served with the notice of hearing.
Petitioner’s Statement of Position
The new rules now require petitioning parties themselves – typically labor unions – to serve and file their own statement of position responding to any issues raised in the non-petitioning party’s statement of position. This statement will be due at noon 3 business days before the hearing on the election petition is scheduled to take place. The new rule also permits timely amendments to the petitioner’s statement of position on a showing of good cause.
Under the old rules, petitioners were only required to respond orally to the non-petitioner’s statement of position at the start of the pre-election hearing. The requirement for a written response should aid in minimizing and clarifying the issues to be litigated.
Issues Covered at Pre-Election Hearing
Disputes regarding the proper scope of the bargaining unit, supervisory status, and voter eligibility will be addressed at the pre-election hearing and resolved by the Regional Director before he or she orders an election. However, the parties may still agree to allow disputed employees to vote subject to challenge.
Under the old rules, these issues did not need to be resolved prior to an election.
Scheduling of Elections
While Regional Directors will still schedule elections for the earliest practicable date as was standard under the old rules, they typically will not schedule an election before the 20th business day after the date and direction of election.
This change represents a return to the standards in place before the 2014 Obama-era rules.
NLRB Chairman John F. Ring said that the new rule represents “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.” Let’s hope his prediction is accurate.
The final rule is scheduled to be published on December 18, 2020, and will become effective 120 days after publication (April 16, 2020) unless litigation by pro-labor advocacy groups delays implementation.