NLRB Abandons Certain “Quickie” Election Rules
The National Labor Relations Board (“NLRB” or “Board”) recently announced its final rule, effective April 16, 2020, which abandons key components of the 2014 “quickie” election procedures adopted during the Obama administration (previously reported here). While the Board explicitly noted that it was “not rescinding the 2014 amendments in their entirety,” the new rule revises important aspects of the current procedures in NLRB representation election cases.
The new rule includes, but is not limited to, the following significant changes:
- Pre-election hearings will generally be scheduled to open 14 business days after service of the notice of the hearing. Currently, pre-election hearings are generally scheduled to open 8 calendar days after the notice of hearing is mailed by the NLRB’s Regional Office (which is usually on the same day the election petition is received in the Regional Office).
- Employers will now have 5 business days to post and distribute the Notice of Petition for Election. Currently, employers have 2 days.
- Employers will have 8 business days, rather than 7 calendar days, to file and serve their Statement of Position after notice of the hearing has been served.
- The petitioning party – usually a union – will now be required to file a Statement of Position responding to the other party’s position statement at least 3 days before the hearing. Currently, only the non-petitioning party – usually the employer – has an obligation to file a pre-hearing Statement of Position.
- Employers will now have 5 business days to provide to the union and the NLRB the required list of names, job classifications, work locations, home addresses and telephone numbers and other personal contact information for eligible voters following issuance of the direction of election. Under the current rule, employers have only 2 days to provide the list.
- Regional Directors will now normally schedule an election for a date no earlier than the 20th business day after the Director’s post-hearing decision and direction of election is issued.
- Parties will now be permitted to litigate unit scope and voter eligibility at the pre-election hearing. Currently, neither unit scope nor voter eligibility is determined before an election is conducted.
- Parties may now file briefs within 5 business days after the close of pre-election hearings. Under the current rule, briefs are only permitted upon the special permission of the Regional Director, which is rarely granted.
The new procedures (which largely restore the pre-2014 NLRB election process) provide the employer with an improved opportunity to resolve unit scope and voter eligibility issues before workers vote for or against union representation. The Board ruled, contrary to the dissent of one Board Member, that these changes are justified because they will make the final election result “fundamentally fairer.”
Significance for Management
The new rule, which improves the electoral landscape for employers, will likely be challenged in court by one or more unions as violating the Administrative Procedure Act (“APA”). Member McFerran (appointed by President Obama, whose term on the Board expired on December 16, 2019) dissented, asserting what she perceived to be the “arbitrary and capricious” way the new rule was adopted. As this election-procedure rule is not subject to the more stringent “notice and public comment” requirements of the APA, an APA-based challenge to the rule is not likely to succeed. In the meantime, NLRB representation election cases will proceed according to the new rule while any challenge to the rule works its way through the courts.
Please do not hesitate to contact any of our attorneys if you have any questions regarding these changes in NLRB procedure or any other matter.