The National Labor Relations Board (NLRB) published 25 revisions to its longstanding election rules in December 2014. Proponents of those changes, which took effect in 2015, promoted them as streamlining the election process. Critics denounced them as undermining the freedom of employee choice that the original election procedures were intended to provide by, among other things, precluding sufficient time for pre-election campaigning to inform employees before they voted. Critics dubbed the changes at the time as the "ambush" election rules. On Dec. 13, 2019, the NLRB announced a final rule further amending its election rules that will add more time back into the election procedures and promote more transparency and fairness. One member has dissented from the new rule, and the NLRB's decision not to allow comment before finalizing the rule based upon its view that the changes are merely procedural might provide a basis for challenge. The new rule will be published in the Federal Register on Dec. 18, 2019, and will take effect on or about April 16, 2020.
The most noteworthy changes in the new rules are as follows.
- Representation hearings will begin no sooner than 14 business days from the notice, as compared to eight days.
- Employers will have five business days from service of the notice of hearing to post the Notice for Petition of Election compared to two business days.
- The non-petitioning party (the employer in a representation case and the union in a decertification or deauthorization case) must file a written Statement of Position one day before the opening of the hearing as contrasted to eight business days following the notice of hearing. Coupled with the changes for notice of hearing, this will give the non-petitioning party about an additional six days to file its Statement of Position.
- The petitioning party will now have to file a written Statement of Position no later than noon three business days before the hearing. Previously, the petitioning party was only required to make an oral statement of position at the opening of the hearing.
- Unit scope and voter eligibility issues will again be litigated at the hearing, as opposed to being put off until after the election. Parties, however, may continue to defer voter eligibility issues by agreeing to have certain individuals vote subject to challenge.
- There will be a right to submit a post-hearing brief within five business days of the close of the hearing, with the hearing officer permitted to extend that time by up to 10 business days for good cause. Under the 2014 amendments, special permission of the regional director was required to submit a post-hearing brief.
- The regional director may not schedule an election earlier than 20 business days from the date of the direction of election unless the parties agree otherwise. Under the 2014 amendments elections could be scheduled as early as 12 days after the direction of election.
- In cases where requests for review of a direction of election filed within 10 business days have either not been ruled upon or have been granted, questioned ballots will be segregated and all ballots will be impounded. There was no automatic impoundment under the 2014 revisions. The parties are still free to await the outcome of an election before filing a request for review if they believe that the outcome will moot the issues.
- The time within which an employer must provide a voter eligibility list is now five business days from the notice of direction of election rather than two business days under the 2014 amendments.
- No certification of the results of an election will be issued while a request for review is still pending. This is contrary to the requirements of the 2014 amendments and should eliminate unnecessary unfair practice litigation caused by premature certifications.
Scheduled to become effective in April 2020, it remains to be seen whether the NLRB's promulgation of this final rule will be challenged, and possibly delayed, by those seeking to maintain the 2014 revisions as long as possible. Holland & Knight will continue to monitor developments and provide updates as warranted.
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