National Labor Relations Board Issues Final Rule to Restore Fair and Efficient Procedures for Union Elections
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August 24, 2023
The National Labor Relations Board today adopted a Final Rule amending its procedures governing representation elections. This Rule largely reverses the amendments made by the Board’s 2019 Election Rule, which introduced new delays in the election process. The new rule returns the Board’s key election procedures to those put in place by a 2014 rule that was adopted using a notice-and-comment process and that was uniformly upheld by federal courts. Last year, the United States Court of Appeals for the District of Columbia Circuit struck down parts of the 2019 Rule, and the Board has already rescinded those provisions. “It is a basic principle of the National Labor Relations Act that representation cases should be resolved quickly and fairly,” said Chairman Lauren McFerran. “By removing unnecessary delays from the election process, the new rule supports these important goals, and allows workers to more effectively exercise their fundamental rights.” The new rule will meaningfully reduce the time it takes to get from petition to election in contested elections and will expedite the resolution of any post-election litigation. Highlights of the new rule’s changes include:
Allowing pre-election hearings to begin more quickly;
Ensuring that important election information is disseminated to employees more quickly;
Making pre- and post-election hearings more efficient; and
Ensuring that elections are held more quickly.
As with prior changes to the Board’s election processes, the new rule will become effective four months from the date of publication to ensure adequate time for the NLRB’s Regional offices to implement the new procedures. A companion rule also ensures that two provisions of the 2019 Rule that had been previously enjoined by a federal district court, but were scheduled to become effective on September 10, 2023, will not take effect. The new rule rescinds those provisions. The final rule was approved by Board Chairman Lauren McFerran and Members Gwynne A. Wilcox and David M. Prouty. Board Member Marvin E. Kaplan dissented. The rule will be published in the Federal Register on August 25, 2023 and will take effect on December 26, 2023. View a fact sheet about the new rule.
Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.
United Federation LEOS-PBA Organizing Director Steve Maritas Fighting for Workers Rights to Join a Union @ NLRB hearing. Maritas was one of 30 labor leaders from around the country chosen to speak on behalf of labor.
Background
In 2014, the NLRB adopted a final rule (“2014 Rule”) significantly altering the Board’s longstanding union election procedures and tipping the scales of a union election in favor of unions by accelerating the election process. Among other things, the 2014 Rule:
Required that elections be set “for the earliest date practicable.” Previously, elections were ordinarily conducted between the 25th and 30th days after the direction of the election.
Required employers to provide the union and Board with an eligible employee voter list within two business days of the NLRB directing an election.
Required the NLRB to certify the results of an election, requiring bargaining in good faith, and reviewing challenges to election conduct to be litigated after certification.
In 2019, the Board dialed back the 2014 Rule and replaced many of its most problematic aspects (“2019 Rule”). Notable changes effected by the 2019 Rule include:
Extending the time between the filing of a representation petition and the pre-election hearing from 8 to 14 business days.
Extending the employer’s deadline to provide the union and Board with an eligible employee voter list from two business days to five business days.
Ensuring that elections could not take place fewer than 20 business days after the NLRB regional director issues the direction of election.
Requiring questions of employee eligibility and unit scope to be litigated at the pre-election hearing rather than after the election as they were under the 2014 Rule.
Requiring that the Board refrain from certifying election results until after challenges to election conduct had been resolved.
Earlier this year, several of the 2019 Rule’s changes were invalidated by the District of Columbia Court of Appeals in Fed'n of Lab. & Cong. of Indus. Organizations v. Nat'l Lab. Rels. Bd., 57 F.4th 1023 (D.C. Cir. 2023). Notably, however, the ruling upheld the 2019 Rule’s 20-business-day waiting period before the regional director schedules an election.
New Election Rule
As expected, remnants of the 2019 Rule have officially been rolled back by the Democratic majority of the NLRB and replaced almost entirely by the 2014 Rule’s procedures. According to the Board, the changes are designed to “restore fair and efficient procedures for union elections.” Changes effected by the new rule include:
Pre-Election Hearings: Under the new rule, pre-election hearings must commence within 8 calendar days from service of the Notice of Hearing. The new rule also limits pre-election hearings to questions of whether representation exists. Disputes concerning eligibility or unit scope will now be resolved after elections.
Statements of Position: The new rule shortens the non-petitioning party’s deadline for submitting a Statement of Position (“SOP”). Previously, parties had up to 8 business days after service of the notice of hearing. Under the new rule, SOPs must be submitted by noon the business day before opening of the pre-election hearing, which must now be held within 8 calendar days form service of the notice of hearing. The new rule also eliminates the requirement for petitioners to serve written SOPs 3 business days prior to the pre-election hearing. Instead, they may now respond orally to the non-petitioning party’s written SOP at the start of the hearing.
Extensions of Time: The new rule provides regional directors with discretion to postpone the due date for the filing of a Statement of Position or to postpone the pre-election hearing up to 2 business days upon request of a party showing “special circumstances” and for more than 2 business days upon showing “extraordinary circumstances.”
Posting Notice of Petition for Election: Employers must now post the Notice of Petition for Election in conspicuous places in the workplace and, if the employer customarily communicates with employees electronically, electronically distribute it to employees within 2 business days after service of the Notice of Hearing. Previously, employers had 5 business days to post.
Post-Hearing Briefs: The new rule permits parties to file post-hearing briefs only with special permission from either the regional director (following pre-election hearings) or the hearing officer (following post-election hearings). Briefs are also limited to the subjects permitted by the regional director or hearing officer. The 2019 Rule entitled parties up to submit post-hearing briefs and gave them up to 5 business days following the close of a hearing to do so.
Notices of Election: Regional directors will now specify the election details in the decision and direction of election and will simultaneously transmit the Notice of Election with the decision and direction of election. Under the 2019 Rule, regional directors were given discretion to convey the election details and later transmit the Notice of Election.
Election Dates: The new rule eliminates the 20-business-day waiting period between the decision and direction of election and restores the 2014 Rule’s requirement for regional directors to schedule elections for “the earliest date practicable.”
Absent a successful legal challenge, the new election rules will take effect on December 26, 2023.
In another unrelated case the NLRB has now issued a new decision in Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters.
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