On August 24, 2023, the National Labor Relations Board (“NLRB”) issued a final rule which expedites the union election process. The final rule overturns a 2019 rule requiring a mandatory delay of at least 20 business days between the issuance of a direction of election and the election. This final rule will take effect on December 26, 2023. The NLRB also issued a landmark decision in Cemex Const. Materials Pac., LLC, N.L.R.B., Case 28-CA-230115 08/25/23 which drastically changes the election process and provides unions new avenues to recognition while simultaneously placing increased scrutiny on employer conduct during election campaigns. Cemex became effective upon issuance, meaning that employers currently involved in the union election process must quickly familiarize themselves with the new requirements and implications of this decision.
The NLRB explained in Cemex that elections should be scheduled “for the earliest date practicable”. The decision draws heavily upon elements of the standard established in a 1949 ruling in Joy Silk Mills. In that case, the NLRB ruled that employers must recognize and bargain with unions that have majority support from workers unless they have a good faith reason to doubt that support. Under Cemex, an employer is required to recognize a new union when presented with a demand for voluntary recognition along with signed authorization cards from a majority of employees in the proposed bargaining unit within fourteen (14) days. If the employer does not wish to recognize the union after being presented with authorization cards, the burden is now on the employer to file an RM Petition with the NLRB and request an election within the fourteen (14) day time period. An employer is no longer required to possess a good faith doubt regarding the authenticity of the cards and majority status in order to file an RM Petition. Assuming that the union does not file an RC Petition within that time period, failure of the employer to file an RM Petition will be considered an unfair labor practice. This will then prompt the NLRB to issue a bargaining order and the union automatically will be recognized without an election. Additionally, if an employer is found by the NLRB to have committed an unfair labor practice during the “critical period” of an election, the results of the election will be set aside, and the bargaining unit will be automatically recognized. The NLRB will no longer allow for a re-run election.
As for the NLRB’s new election rule, pre-election hearings must now be scheduled within eight (8) calendar days from service of the notice of hearing instead of eighteen (18) days under the previous rule. Employers will be mandated to present documents and witness testimony at the hearing on an expedited schedule with far less time for preparation than in previous years.
The new rule also places heightened restrictions on the discretionary authority of the Regional Director to postpone a pre-election hearing. Under the previous rule, a Regional Director could postpone a hearing for an unlimited amount of time upon a showing of good cause. Under the new rule, a Regional Director may only postpone a pre-election hearing for two days if “special circumstances” are shown. A postponement of more than two days requires a showing of “extraordinary circumstances.”
The position statement responding to the representation position will be due by noon the business day prior to the opening of the pre-election hearing, which is only seven (7) calendar days after service of the pre-election hearing notice. Regional Directors under this new rule have no discretion to postpone position statement due dates absent the showings required for a postponement of a pre-election hearing. Most importantly, unions are no longer required to submit their position statements in advance of the hearing, but have the option of providing their responses orally at the hearing, substantially limiting an employer’s ability to prepare a thorough and effective position on issues that may be raised by the union.
Under the previous rule, employers had five (5) business days after the service of a notice of hearing to post and distribute a notice of petition for election to employees. The new rule shortens this time to two (2) days, meaning that employers must act quickly to fully comply.
The previous rule required individual eligibility and inclusion issues to be resolved by the Regional Director prior to the pre-election hearing. The new rule completely eliminates this requirement, and the NLRB has communicated that “the purpose of the pre-election hearing is to determine whether a question of representation exists.” Thus, disputes over eligibility or inclusion of certain individuals in the bargaining unit “ordinarily do not need to be litigated or resolved prior to an election.” A Regional Director will now be permitted to exclude certain evidence that is irrelevant to determining whether there is a question of representation. The new rule also eliminates the previous five-day period each party had to submit a post-hearing brief. Now, parties will only be able to file post-hearing briefs with special permission from the Regional Director for a pre-election hearing or from a hearing officer following a post-election hearing.
Regional Directors will determine election details such as the type, date, time, and location of the election as well as the eligibility period in the decision and direction of election. Typically, the notice of election will be sent along with the decision. The twenty-business day waiting period will not be recognized or enforced by the NLRB under the new rule and the Regional Director is required to schedule elections for the “earliest date practicable” after a decision and direction of election. This expedited election schedule will likely pose a great challenge to employers seeking to educate their members about the implications of unionization and leave them with a very short period of time to accomplish this goal.
In advance of the December 26, 2023, effective date, employers should review existing plans and strategies concerning their obligations and rights under the new NLRB election rule. Employers should be sure to devise response plans and education campaigns well in advance of union elections and should be fully prepared to present witnesses and positions on short notice during the election process given the shortened election timeframe. McMahon Berger, P.C. will continue to monitor developments concerning NLRB rules and provide updates as they occur.
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.
