The National Labor Relations Board has issued a new rule that significantly changes its union election procedures, reversing controversial Obama-era rules that had expedited the election process.
The last revision was implemented in 2015, when the Obama Board revised the union election process to implement what were referred to by many as “ambush” or “quickie” elections. Under these rules, an election could take place in as few as 13 days following the initial petition. This left the employer with little time to prepare for the election and ensure that employees were fully informed about their rights and the important facts and issues that could affect their decision.
The new rule takes several steps to slow things back down, and restores a more balanced election procedure. Below are some of the more notable changes:
- Election-Notice Posting: The prior or “quickie” rule required employers to post a Notice of Election within two business days of receiving a Notice of Hearing from the NLRB, while the new rule increases that time period to five business days. This gives employers more time to prepare before formally notifying employees of the pending election.
- Pre-Election Hearing Timing: Under the prior rule, pre-election hearings (in which disputes related to the election details are resolved) were scheduled within eight calendar days of the Notice of the Hearing. That period is now extended to at least 14 business days from the Notice of Hearing, giving employers more time to identify potential issues and begin preparing for the election.
- Statements of Position: The prior rule required employers to submit Statements of Position within seven calendar days of the Notice of Hearing, i.e., one day before the pre-election hearing was to occur, and the union was not required to formally respond to the employer’s position until the actual hearing. Under the new rule, employers now have eight business days to identify issues (e.g., regarding unit scope, voting eligibility, and election logistics), and the union must respond to the employer’s statement in writing at least three business days before the hearing.
- Resolution of Voter Eligibility and Unit Scope Issues at the Hearing: Under the prior rule, pre-election hearings were confined to issues relating to whether a valid question concerning representation existed. Such issues included the petitioning union’s status as a labor organization and whether the petitioned-for unit was appropriate for the purposes of bargaining. Important challenges to issues like voter eligibility and unit scope were postponed until after the election. The new rule gives the employer the option to have those issues resolved before the election occurs. The rule also gives employers the right to appeal a Regional Director’s adverse determination to the full Board and to have the appeal resolved prior to the election or, if not resolved, to have disputed ballots impounded pending the outcome of the appeal.
- Election Timing: One of the most significant revisions of the prior rule was the scheduling of the election at the “earliest date practicable,” which resulted in elections being held on average just 23 calendar days after the filing of the petition (and potentially as few as 13 days). The new rule uses the same general mandate—“the earliest date practicable”—but also clarifies that, absent waiver by the parties, the election normally will not be scheduled before the 20th business day after the date of the Direction of Election, i.e., 20 full business days after the regional office issues its decision on the issues presented in the pre-election hearing. As a result, the total time from petition-filing to election in such situations can more than double the average time under the prior Rule.
- Certification of Election Results: The quickie rule required Regional Directors to certify the results of an election that the union had won, even if the employer was appealing the results seeking to have the election overturned. The new rule dictates that appeals be resolved before certification, which makes clear that no bargaining obligation will attach unless and until the appeal is denied and the election is upheld.
The new rule is a welcome change for the business community. It provides employers with more time to educate employees and prepare for the election, restoring a more balanced and fair election process. All of this in turn gives employees a better opportunity to make an informed decision about whether union representation is right for them.
Absent legal challenge, the new rule will likely become effective in April of 2020 (120 days after posting of the rule in the
Federal Register, which is expected to occur on December 18, 2019).