On December 13, 2019, the National Labor Relations Board (Board) announced a series of modifications to its representation case procedures. These modifications will be published on December 18, 2019, and are scheduled to go into effect on April 16, 2020. Unlike the Obama Board's 2014 amendments, the current Board has elected to implement these changes without notice and comment.
According to the Board, "[w]hile retaining the essentials of existing representation case procedures, these amendments modify them to permit parties additional time to comply with various pre-election requirements instituted in 2015, to clarify and reinstate some procedures that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues prior to an election, and to make several other changes the Board deems to be appropriate policy choices that better balance the interest in the expeditious processing of questions of representation with the efficient, fair, and accurate resolution of questions of representation."
This announcement should come as a reprieve to employers after the Obama Board's 2014 amendments, which imposed, among other things, tight procedural deadlines on employers and sped up the scheduling of elections thereby shortening the window employers had to conduct their own campaigns regarding unionization. The most notable changes are that now, elections will not normally be scheduled before the twentieth business day after the date of the direction of an election, disputes concerning unit scope and voter eligibility will normally be litigated at the pre-election hearing and resolved by the regional director before an election is directed, and employers will have a right to file post-hearing briefs.
Below is a summary of the Board's modifications to the existing representation case procedures:
- The pre-election hearing will generally be scheduled to open 14 business days from notice of the hearing, and regional directors will have discretion to postpone the opening of the hearing for good cause. Under the prior rules, pre-election hearings were generally scheduled to open eight calendar days from the notice of hearing.
- Employers will now be required to post and distribute the Notice of Petition for Election within five business days after service of the notice of hearing. The prior rules required posting and distribution within two business days.
- Non-petitioning parties (typically employers) will now be required to file and serve the Statement of Position within eight business days after service of the notice of hearing. Regional directors will also now have the discretion to permit additional time for filing and service for good cause. Non-petitioning parties were formerly required to file and serve the Statement of Position one day before the opening of the pre-election hearing (typically seven calendar days after service of the notice of hearing).
- Petitioners (typically unions) will also be required to file and serve a Statement of Position on the other parties responding to the issues raised by any non-petitioning party in a Statement of Position. The responsive Statement of Position will be due at noon three business days before the hearing is scheduled to open (which is also three business days after the initial Statement(s) of Position must be received). Timely amendments to the responsive statement may be made on a showing of good cause. The prior rules required the petitioner to respond orally to the Statement(s) of Position at the start of the pre-election hearing.
- Disputes concerning unit scope and voter eligibility – including issues of supervisory status – will now normally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. The parties may, however, agree to permit disputed employees to vote subject to challenge, thereby deferring litigation concerning such disputes until after the election. The prior rules provided that disputes "concerning individuals' eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted."
- The right of parties to file a post-hearing brief with the regional director following pre-election hearings has been restored and extended to post-election hearings as well. Such briefs will be due within five business days of the close of the hearing, although hearing officers may grant an extension of up to 10 additional business days for good cause. Under the prior rules, such briefs were permitted only upon special permission of the regional director.
- The regional director's discretion to issue a Notice of Election subsequent to issuing a direction of election is emphasized. The prior rules provided that regional directors "ordinarily will" specify election details in the direction of election.
- The regional director will continue to schedule the election for the earliest date practicable, but – absent waiver by the parties – normally will not schedule an election before the twentieth business day after the date of the direction of election. The prior rules simply provided that the regional director "shall schedule the election for the earliest date practicable."
- Where a request for review of a direction of election is filed within 10 business days of that direction, if the Board has not ruled on the request, or has granted it, before the conclusion of the election, ballots whose validity might be affected by the Board's ruling on the request or decision on review will be segregated and all ballots will be impounded and remain unopened pending such ruling or decision. A party may still file a request for review of a direction of election more than 10 business days after the direction, but the pendency of such a request for review will not require impoundment of the ballots.
- Formatting and procedural requirements for all types of requests for reviews have been systematized. All requests for review and oppositions thereto are now subject to the same formatting requirements. Oppositions are now explicitly permitted in response to requests for review filed pursuant to section 102.71 of the Board's Rules and Regulations. And the practice of permitting replies to oppositions and briefs on review only upon special leave of the Board has been codified.
- The employer will now have five business days to furnish the required voter list following the issuance of the direction of election. Under the prior rule, the employer had only two business days to provide the list.
- In selecting election observers, whenever possible, a party will now select a current member of the voting unit; when no such individual is available, a party should select a current nonsupervisory employee. The prior rules simply provide that parties may be represented by observers.
- The regional director will no longer certify the results of an election if a request for review is pending or before the time has passed during which a request for review could be filed. Under the prior rules, regional directors were required to certify election results despite the pendency or possibility of a request for review; indeed, in cases where a certification issued, requests for review could be filed up until 14 days after the issuance of the certification.
- The final rule also makes a number of incidental changes in terminology and updates internal cross-references, consistent with earlier changes that were effective on March 6, 2017. See 82 Fed. Reg. 11748. In addition, for the sake of uniformity and transparency within the representation case procedures, the Board has converted all time periods in subpart D to business days, and it has also updated section 102.2(a) to define how business days are calculated (including clarification that only federal holidays are implicated in time period calculations).
Employers should keep in mind that these amendments do not go into effect until April 16, 2020, which means that the current rules still apply. This may encourage unions to speed up their organizing efforts to benefit from the current representation rules.
This article is presented for informational purposes only and is not intended to constitute legal advice.