The National Labor Relations Board recently issued a Final Rule amending its union election procedures. The amendments collectively shorten time periods significantly for several election processes, including pre- and post-election hearings, furnishing voter lists, and the overall election timeline itself.
Background: The current Board’s Final Rule is actually a restoration of procedures put in place by the Obama-era Board in 2014. That rule was significantly amended by the Trump Board’s Election Rule in 2019, which lengthened the timelines for the same processes shortened by the Obama Board (and now shortened again by the current Board). The Trump Board’s rule was challenged in federal court, and the D.C. Circuit eventually struck down several of its provisions last year. The current Board subsequently rescinded those parts of the rule that were struck down, and did away with the rest with the new rule published yesterday.
The new (old) rule will significantly shorten the timeline for union elections. The changes include:
Pre-election hearings will be scheduled within 8 days of service of the Notice of Hearing, instead of 14 days.
Regional directors are limited to up to 2 days for pre-election hearing and submission of statements of position postponements, rather than unlimited time for postponement.
Employers must post the Notice of Petition for Election in the workplace and email it to its employees within 2 days of service of the Notice of Hearing, instead of 5 days.
Voter eligibility and inclusion disputes do not need to be litigated and resolved prior to an election. The 2019 rule generally required such issues to be resolved prior to the holding of an election.
Regional Directors are required to schedule elections for “the earliest date practicable” after issuance of a decision and direction of election, rather than a 20-day waiting period.
Parties may only file supplemental pre- or post-election briefs with the “special permission” of the Regional Director, rather than simply upon a showing of good cause.
The Board claims the above changes will reduce unnecessary delays and make election processes more efficient in better service of the purposes of the NLRA. The Board did not engage in traditional notice-and-comment rulemaking – no proposed rule and solicitation for public comment was issued, which the Board claims was unnecessary as the changes are procedural, rather than substantive in nature.
Outlook: The cumulative effects of the new rule will be to streamline a union’s path towards representation, while conversely reducing an employer’s ability to educate its employees on the effects of potential union representation. Employers will have far less time – and fewer avenues – to contest union election campaigns. Notably, but unsurprisingly, the Board recently took a diametrically opposite approach to decertification election campaigns, reviving a block charge policy that significantly delays such election processes, in some cases indefinitely. The contradiction evident in these two approaches is an apt representation of the Board’s attitude towards labor law.
