NLRB Revises Union Election Rules To Avoid "Ambush" Elections

Labor & Employment

On December 13, the National Labor Relations Board (NLRB) announced new modifications to its election rules. The NLRB is the federal agency that administers the National Labor Relations Act and, among other things, oversees the formation of collective bargaining relationships between employers and groups of employees in the private sector, typically through an NLRB-supervised election.

In 2014, the NLRB issued a broad set of revisions to the Board’s Representation Case Procedures, promulgating 25 amendments to rules that had been in place for decades, the effect of which was to significantly shorten the timeline between the filing of an election petition and the holding of the election. Because a faster timeline in NLRB elections tends to favor the union, those rules were roundly criticized by employers, and became derisively known as the “ambush” or “quickie” election rules. Board statistics demonstrate the faster pace of elections under the 2014 rules: For fiscal 2014, the last full year under the old rules, median time from the election petition to the actual election was 38 days; in fiscal 2016, the first full year of the new rules, the median time to election dropped to 23 days.

As part of its rollback of the perceived excesses of the Obama-era Board, the NLRB under the Trump administration has now issued revised Representation Case Procedures containing 15 modifications to the rules. Highlights of the changes include the following:

  • Notice of Petition for Election: The employer is required to post and distribute this NLRB-issued notice within five business days after receipt, up from two business days.
  • Preelection Hearing: The preelection hearing is to commence 14 business days after the notice of hearing, up from eight calendar days after the notice of hearing.
  • Statement of Position: The employer must file a prehearing Statement of Position within eight business days after service of the notice of hearing, up from seven calendar days.
  • Union Statement of Position: The petitioner in the election (typically, the union) must file a Statement of Position responding to the employer’s Statement of Position, three business days before the preelection hearing; previously, the union was not required to file anything.
  • Unit Scope & Voter Eligibility: These hotly contested issues will now be litigated at the prehearing election; under the Obama-era Board rules, these issues were deferred until after the election; litigating them at the preelection hearing marks a return to pre-2014 practice.
  • Posthearing Brief: In another return to pre-2014 procedure, the parties may file a brief after the preelection hearing, and they have five business days to do so; the Obama-era Board rules permitted this brief only upon special permission of the NLRB regional director.
  • Election Date: After the preelection hearing, if the regional director directs that an election be held, the election must be scheduled at least 20 business days after the direction of election; the prior rule mandated the election be held on the earliest date practicable.
  • Voter List: The employer now has five business days after the direction of election to provide the required list of voters, up from two business days.
  • Election Observers: The new rule requires that the parties select as election observers a current member of the voting unit, or, if none is available, a current nonsupervisory employee; prior practice permitted nonemployees, even, in some cases, union officials, to serve as election observers.
  • Business Days: All time periods will now be calculated using business days, not calendar days.

While the details of the Board’s Representation Case Procedures can seem very technical and “inside-baseball,” those rules very often have significant consequences to the outcome of the contest. These new modifications help reverse some of the more union-friendly aspects of the 2014 Obama-era Board rules and, by lengthening election timelines, should give employers additional time to make their cases to employees that union representation is not in their best interests.

The new rule will publish on December 18, 2019, and is slated to take effect 120 days later. 

To learn more about this topic, please contact any of Calfee’s Labor & Employment lawyers or your Calfee attorney.


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