One of the more significant reforms made by the National Labor Relations Board (NLRB) under the leadership of President Barack Obama's appointees was the modifications made to the representation-case procedures. These regulations became known to many as the "quickie" or "ambush" election regulations and, as those names suggest, resulted in union representation elections being held in shorter periods of time and consequently often caused employees to have to decide the question of union representation without the time needed to fully evaluate that important decision.
On December 13, 2019, the NLRB, under the leadership of President Donald Trump's appointees, finalized a rule reversing some of the more problematic provisions contained in the "ambush" election regulations that went into effect in 2015. The majority was careful to say "that the Board is not rescinding the 2014 amendments in their entirety." Nonetheless, these modifications will be of great value to employers in responding to union election petitions as well as to employees who have to collect the information they need in order to decide the issue of union representation.
The following is a quick summary of the key provisions.
- Pre-Election Hearing
The "ambush" election regulations attempted to speed up the entire process of scheduling a union election by shortening the time between the date a union filed its petition and the date on which the pre-election hearing (in which disputes related to the election details are theoretically resolved) was scheduled to open. Under the "ambush" rules, the pre-election hearing was generally scheduled to begin eight calendar days from the Notice of Hearing.
Under the new rules, the pre-election hearing will generally be scheduled to open 14 business days from the Notice of Hearing.
Importantly, the new rules use business days instead of calendar days in calculating responsive timelines under this entire subpart.
- Notice of Petition for Election
Under the "ambush" election regulations, after a petition was filed, employers had to post and distribute a Notice of Petition for Election within two business days of service of the Notice of Hearing.
The new rules require that the same notice be posted and distributed, but now within five business days after service of the Notice of Hearing.
- Statement of Position
One of the more intrusive requirements under the "ambush" election regulations was the obligation on employers to develop and file a Statement of Position to identify any issues in dispute related to the petition and outline the arguments in support of those positions.
Under the "ambush" rules, the Statement of Position had to be filed by noon the day before the hearing was scheduled to begin (typically only seven calendar days after service of the Notice of Hearing).
Under the revisions, the non-petitioning party will now have eight business days after service of the Notice of Hearing to prepare, file, and serve the Statement of Position. Regional directors will now also have discretion to extend that time period for good cause.
In addition, unions will now have an obligation to file a Statement of Position responding to the issues raised by the employer. The union's responsive Statement of Position will be due at noon three business days before the hearing is scheduled to begin (which will be three business days after the initial Statement of Position is received by the union). This adds a formal written response requirement for the union as opposed to the simple obligation under the "ambush" election rules for the union to make an oral response to the employer's Statement of Position at the start of the pre-election hearing.
- Resolution of Disputed Issues Pre-Election
Under the "ambush" election regulations, the resolution of disputes over unit scope and voter eligibility—including issues of supervisory status—were often delayed until after the election was held.
Under the revised rule, those issues will now normally be litigated pre-election and resolved at the regional office level before the election is directed. The parties may still mutually agree to vote disputed employees subject to challenge (and resolve those disputes after the election, if necessary), but the timeline for resolving such disputes can no longer be forced on the employer, which was what often happened under the "ambush" election regulations.
- Post-Hearing Briefs
Under the "ambush" election regulations, post-hearing briefs in which the parties explained their positions on disputed issues citing legal authority were permitted only with special permission from a regional director. Such permission was often denied, and the parties were often only allowed to make an oral argument at the close of the taking of evidence in the hearing.
The new rule establishes the right of a party to file a Post-Hearing Brief following a pre-election hearing. Those briefs will now be due within five business days of the close of the hearing (and hearing officers will have discretion to grant an extension of up to 10 additional business days for good cause).
- Date of Election
Under the "ambush" election regulations, NLRB regional directors were directed to schedule elections "for the earliest date practicable" without any precise timeline.
The new rules use the same directive for when the election should be scheduled—"the earliest date practicable"—but clarify that, absent waiver by the parties, the election normally will not be scheduled before the 20th business day after the date of the Direction of Election.
This timeline will allow the Board to rule on certain types of Requests for Review prior to the election, which rarely happened under the "ambush" election rules.
- Voter List
After an election is directed, employers have long been required to generate a voter eligibility list containing the name and contact information for each eligible voter. Prior to the "ambush" election regulations, this list was often referred to as the "Excelsior List" and employers were obligated to provide to the NLRB a list containing the name and home address for each voter. Historically, the NLRB would then provide that list and the information it contained to the union. Prior to the "ambush" election rules, the employer had seven days to produce that list.
The "ambush" election regulations made at least three significant amendments to this process. Under the "ambush" rules, the list was due just two business days after the Direction of the Election. More problematic, the employer was required to include on that list the voters' home phone numbers, cellular phone numbers, and personal email addresses, to the extent the employer had that information. Finally, the employer had to turn that sensitive information over to the union directly as opposed to giving it to the NLRB.
Under the new rules, the employer will now have five business days to furnish that voter list to the union and the NLRB's regional office. Importantly, the new rules do not appear to change the requirement that the employer provide the personal contact information added as a requirement under the "ambush" rules or the requirement that the employer serve that sensitive employee information directly on the union.
- Certification of Results of Election
Finally, under the "ambush" election regulations, regional directors were required to issue a certification of the results of an election in which the union had won, even while the employer was appealing issues that could result in the union's election win being set aside.
Under the new rules, regional directors will no longer certify the results of an election while such an appeal, known as Request for Review, is pending or while the employer still has time to file a Request for Review. This will prevent any confusion over the employer's duty to bargain while these appeals are pending.
The new representation regulations issued by the NLRB reverse some of the most problematic aspects of the "ambush" election regulations and restore the balanced process that existed for many years prior to the 2014 amendments.
These new procedures allow employers the time needed to appropriately evaluate developments related to the union petition and to protect their important business interests, which were often sacrificed to the goal of speed for speed's sake under the "ambush" rules. Most importantly, these amendments will better allow employees the time they need and deserve to collect information regarding the impact of union representation and to make a measured decision about what is best for them, as Section 7 of the National Labor Rights Act provides.
The new rules will become effective 120 days after publication in the Federal Register, which is scheduled to take place on December 18, 2019. If that happens as planned, the rules will become effective on April 16, 2020.
We will be reviewing this 302-page document further over the weekend and will provide greater detail and clarification.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.