The National Labor Relations Board (“NLRB”) recently announced changes to its representation case procedures that mark a shift away from the “ambush elections” created by the 2014 Obama-era rules. Though the 2014 rules are still in place, the new rules create a more favorable timeline for employers during elections.
Section 9 of the National Labor Relations Act (“NLRA”) authorizes the NLRB to resolve the question of representation when employees and the employer cannot agree on whether employees should be represented for purposes of collective bargaining. The NLRA only sets out the basic steps for resolving representation questions. The framework includes a petition, the Board’s investigation, a secret ballot, and certification of election results. Within the basic framework, the Board has authority to adopt rules to ensure efficient resolution of representation questions and guarantee fair voting.
In 2014, the Board heavily revised its existing rules to speed up the election process, reducing the time between a union petition filing and the union election. The 2014 rules delayed employer challenged to voter eligibility until after the election, eliminated a delay between the direction of the election and the election itself, and required a pre-election hearing eight days after service of a hearing notice. The rule also required employers to file a position statement the day before the pre-election hearing.
The new rules shift pre-election hearings to 14 business days from notice of the hearing, as opposed to the current rule’s eight calendar day timeline. Similarly, employers will have five business days to post and distribute the Notice of Petition for Election instead of two business days. Employers must file position statements within eight business days after the notice of hearing is served rather than one day before the opening of the pre-election hearing. Unions must then file responsive position statements by noon, three business days before the hearing. In the former rules, unions typically did not have to file position statements. Parties can now file post-hearing briefs after both pre-election hearings and post-election hearings within five business days of the hearings. Under the former rules, a party could only file a post-hearing brief if the regional director gave special permission
Perhaps the most important change, the new rule provides that all disputes over the scope of the bargaining unit and voter eligibility should generally by litigated at the pre-election hearing, meaning that the vote is halted until these issues are resolved. Another significant change is that the regional director will not issue certifications after elections if a request for review is pending or during the time that a request for review could be filed. Under the former rule, regional directors issued certifications regardless of whether the employer requested review. As member Lauren McFerran noted in the dissent, the minimum period from election petition filing to union certification in cases where there are pre- and post-election disputes would go from 23 days to 78. Lastly, the Board’s new rules provide that, absent agreement between the parties, the regional director will not schedule an election before the 20th business day after the date of the direction of election.
These changes give employers more “breathing room” before, during, and after elections. The new rules go into effect 120 days after the rules are published in the Federal Register, which occurred on December 18.