On December 18, 2019, the National Labor Relations Board (NLRB), published fifteen amendments to the union representation election process. These amendments reflect the NLRB’s inclination to bring the procedural rules back to their pre-2014 status by permitting both parties additional time to comply with pre-election requirements and reinstating certain procedures that ensure proper and efficient litigation.
In 2014, the NLRB made 25 amendments to the election rules that imposed new procedural requirements, limited the scope of pre-election hearings, and significantly shortened the timeline between the filing of a petition and an election. The 2014 amendments lead to thousands of complaints filed with the NLRB. Based on these complaints and the concerns of employers and Board members, the NLRB has implemented the following amendments:
- The pre-election hearing generally will be scheduled to open 14 business days from the Notice of Hearing, with the Regional Directors having the discretion to postpone the pre-election hearing for good cause. Previously, the pre-election hearing was scheduled to take place 8 days from the notice.
- The employer is required to post and distribute the Notice of Petition for Election within 5 business days after service. Previously, the rules required posting and distribution within 2 business days.
- Non-petitioning parties are required to file and serve a Statement of Position within 8 business days after service of the Notice of Hearing, with the Regional Directors having the discretion to permit additional time for good cause. Previously, the non-petitioning parties were required to file and serve a Statement of Position 1 day before the opening of the pre-election hearing.
- The petitioner will now be required to file and serve a Statement of Position responding to any issues raised by a non-petitioning party’s Statement of Position. The responsive Statement of Position is due at 12:00 pm, 3 days before the pre-election hearing is scheduled to open, which is 3 days after the initial Statement of Position must be received. The prior rules only required the petitioner to orally respond to issues raised in a non-petitioning parties’ Statement of Position. Requiring a responsive Statement of Position narrows the issues to be litigated in a pre-election hearing.
- The purpose of the pre-election hearing may be expanded to determine not only questions of representation, but also disputes concerning unit scope, voter eligibility, and issues surrounding supervisory status. Of course, upon agreement of all parties, they may defer litigation of disputed employees to a post-election hearing. The prior rules allowed disputed employees to vote and then raise the issue in a post-election hearing. This amendment will promote fair and accurate voting and provide transparency by better defining the unit prior to the election, while allowing the parties to decide what is best for them by permitting them to defer said litigation.
- The right of the parties to file a post-hearing brief following pre-election hearings has been restored and extended to post-election hearings. All briefs must be filed within 5 business days of the close of the hearing.
- The Regional Director’s discretion to issue a Notice of Election after a Direction of Election has been emphasized and clarified by altering the language to state the Regional Director “may” issue a Notice of Election. The rule previously stated the Regional Director “ordinarily will” issue a Notice of Election. This change will decrease unnecessary litigation over the issuance or non-issuance of a Notice of Election.
- The Regional Director will schedule the election for the earliest date practicable, but absent waiver by both parties, normally will not schedule an election before the 20th business day after the date of the Direction of Election. This change allows the Regional Director more flexibility in complicated cases.
- If a request for review of a Direction for Election is filed within 10 business days of the Direction, and the NLRB has not ruled on the request before the conclusion of the election, all potentially impacted ballots will remain unopened and impounded until the NLRB issues a ruling. If request for review of the Direction is filed after 10 business days of the Direction, impounding of affected ballots is not required. Previously, impounding controversial ballots was not required.
- Formatting and procedural requirements for all requests for reviews have been systemized and oppositions are now allowed.
- A party is no longer allowed to request a review for part of a Regional Director’s action and then later request a review of a different portion of that same action; a party’s initial request for review of a Regional Director’s action must state all parts to be reviewed.
- The employer has 5 business days to furnish the required list of eligible employees following the issuance of the Direction of Election. Under the prior rule the employer only had 2 business days.
- Whenever possible, a party will select a current member of the voting unit to be an election observer; if a current member is not available, a party should select a nonsupervisory employee.
- The Regional Director no longer will certify the results of an election if a request for review is pending or the time to file a request for review has not expired. Under the prior rules, the Regional Director was required to certify the results, despite the pendency of or potential for a request for review.
- Finally, the amendments make numerous global changes in terminology to ensure consistency with previous versions of the rule and define how business days are calculated.
While most of these amendments will result in lengthening the pre-election period, the NLRB states “this sacrifice will advance fairness, accuracy, transparency, uniformity, efficiency, and finality.”
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.