As we previously reported in Employers Cheer Labor Board’s New Rules on Union Elections, the National Labor Relations Board (“NLRB” or “the Board”) made a number of changes in December, 2019, to their Rules and Regulations governing the processing of Union representation cases (i.e. elections). These revised Rules went into effect on June 1, 2020 (barring a few exceptions discussed below).
For the most part, the new Rules reversed revisions to the Board’s standard election practices which were implemented by the Obama-Era Board in 2014, and generally provide employers with more time to prepare once served with a Notice of Election.
Summary of Changes
The most noteworthy new changes to be aware of are summarized below:
|Old Rule||New Rule|
|Previously, either business days or calendar days were used to calculate when something was due, and which method was used varied from rule to rule.||Now, all time periods are calculated using business days, with the exception of the requirement that parties must have the relevant voter list 10 calendar days prior to an election.|
|Pre-election hearings were always scheduled eight calendar days from the notice of hearing.||Now, pre-election hearings are scheduled 14 business days from the notice of hearing.|
|Pre-election hearings could only be delayed for two days upon a showing of “special circumstances,” and could only be delayed longer if the party requesting the delay could establish the high bar of “extraordinary circumstances.”||Regional Directors now have greater discretion to postpone hearings, and can do so upon a showing of “good cause.”|
|Unions were not required to file a responsive statement of position under the 2014 Rules.||Now, the petitioning party must file a responsive statement of position, due three businesses days before the pre-election hearing.|
|Employers were required to post the Notice of Petition for Election within two business days.||Now, employers have five business days to post the notice.|
|Previously, Regional Directors were encouraged, but not required, to conduct a pre-election hearing conference call to attempt to resolve any disputed issues prior to the pre-election hearing. Typically, this did not happen because of the tight timelines under the 2014 Rules.||Under the new Rules, the Board expects that a telephone conference be held to discuss any disputed issues before the hearing, in part due to the most lenient timelines under the revised Rules.|
|Before, post hearing briefs after a pre-election hearing were not allowed without first receiving special permission from the Regional Director.||Now, any party desiring to submit a brief may do so within 5 business days of the close of the hearing (extensions to 10 business days are allowed upon a showing of good cause”).|
|Previously, if a party challenged the results of a pre-election hearing, the Region would delay the election.||Now, ballots are automatically impounded pending the resolution of any request for review if the issue remains unresolved when the election is conducted.|
Caveat – Rocky Road to Implementation
As a final note, these newly implemented rules have faced legal challenges. Specifically, in March of this year, the AFL-CIO sought an injunction in the United States District Court for the District of Columbia, requesting Court intervention enjoining the revised Rules from going into effect. The AFL-CIO argued that the Board did not follow proper administrative procedure in implementing the new Rules, specifically by failing to provide a required public notice and comment period.
On May 30, 2020, the day before the Rules were scheduled to go into effect, the Court issued a partial injunction, preventing a number of provisions of the rules from becoming effective. Specifically, the Court blocked the following provisions from going into effect:
- The right for parties to litigate voter eligibility and inclusion issues prior to the election.
- A prohibition of scheduling an election before the 20th business day after the date of the direction of election.
- A change that employers furnish the required voter list within five business days, rather than two business days as required under the 2014 Rule.
- A limitation on a party’s ability to only select election observers from the bargaining unit; and
- A prohibition on Regional Directors issuing certifications following elections while a request for review is pending, or during the time when parties may still otherwise request review.
The Board subsequently issued a press release stating that it would appeal the Court’s injunction as soon as possible. Further, the following day, June 1, 2020, the NLRB’s General Counsel issued a Guidance Memorandum affirming that the portions of the revised rules which were not enjoined by the Court would be implemented effective immediately including those listed in the table above.
For now, employers are able to take advantage of the provisions of the new Rules which were not affected by the Court’s Order. This is good news for any employers facing a Union election, as the revised Rules provide some relief from the “rapid-fire” election procedures which were implemented under the Obama-era Board.