On December 13, 2019, the National Labor Relations Board ("Board") issued a new Final Rule amending its procedures for union elections and scaling back the Obama–era "quickie election" rules. To be clear, the Final Rule does not completely rescind the 2014 amendments to the Board's election rules, but it makes fundamental changes to increase due process for all parties involved. As discussed below, the Final Rule amplifies the election timeline by giving employers additional time to comply with pre-election requirements, and clarifies the procedure for litigating and resolving unit scope and voter eligibility issues prior to a union election. The Final Rule is expected to become effective on April 16, 2020.
Significant Changes in the Representation Rules
Pre-Election Hearing. Under the Final Rule, the pre-election hearing generally will be scheduled to open fourteen business days from the hearing notice, and regional directors may postpone the hearing for good cause. Under the 2014 rules, pre-election hearings normally were scheduled to open eight calendar days from the notice of hearing. The Final Rule notes that the extended time period will promote transparency and fairness by allowing more time to deal with preliminary arrangements such as retaining counsel, identifying and preparing witnesses, gathering information, and submitting the required Statement of Position. In addition, the Final Rule added that the fourteen-business-day requirement brings the pre-election hearing schedule into closer alignment with the post-election hearing schedule, which provides for such hearings to open fifteen business days from the tally of ballots.
Notice of Petition for Election. Employers will be required to post and distribute the Notice of Petition for Election within five business days after service of the notice of hearing. The 2014 amendments required posting and distribution within two business days. The Final Rule states this change is warranted because of the logistical difficulties many employers face upon receipt of the notice of hearing, particularly larger or multi-location employers. Likewise, it may take employers significant time to post the Notice of Petition for Election in "all places where notices to employees are customarily posted" and to determine which employees must receive the notice through electronic means. Further, the Final Rule noted that "inasmuch as the failure to timely post the Notice of Petition may be grounds for setting aside the election, providing an extra few days for the employer to comply with this requirement will hopefully minimize the occurrence of objectionable noncompliance."
Statement of Position. The Final Rule states that, although controversial, the Board has retained the Statement of Position ("SOP") requirement from the 2014 amendments in its entirety, but with two important modifications. First, non-petitioning parties will be required to file and serve the SOP within eight days after service of the notice of hearing, and regional directors may permit additional time for filing for good cause. Previously, the non-petitioning party was formally required to file and serve the SOP one day before the opening of the pre-election hearing (typically seven calendar days after service of the notice of hearing). In practice, this requirement often meant that the employer was forced to prepare its SOP and prepare for a hearing at the same time. Second, the petitioner will also be required to file a SOP responding to the issues raised by the non-petitioning party in its SOP. The responsive SOP will be due three business days before the hearing opens. The 2014 amendments only required the petitioner to respond orally to the SOP at the start of the pre-election hearing, which provided virtually no advance notice of potential union arguments to an employer. According to the Final Rule, the new SOP process, which places equal obligations on both employers and unions, will facilitate election agreements and/or result in more orderly litigation by narrowing and focusing the issues to be litigated at the pre-election hearing.
Scope of Pre-Election Hearing. Disputes involving 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, which would defer litigation about such disputes until after the election. The Final Rule represents a return to the Board's procedures in place prior to the 2014 amendments.
The Final Rule notes that permitting litigation of issues of eligibility and inclusion at the pre-election hearing, and resolving those issues prior to the direction of an election, will better serve the interests of certainty and finality about the voting process. For example, failing to resolve supervisory status issues prior to an election can lead to post-election litigation where the putative supervisors engage in conduct that is objectionable when engaged in by a supervisor, but is unobjectionable when engaged in by an employee. Resolution of supervisory issues up front can provide the parties with better guidance for the remainder of the election campaign and reduce the possibility of objectionable conduct. Likewise, as the Final Rule states, "[h]aving eligibility and inclusion issues litigated and generally resolved before a direction of election will assist the parties in knowing who is eligible to vote and who speaks for management." The Final Rule also promotes fair and accurate voting by reducing the possibility that voters will be confused by the vote-subject-to-challenge procedures. Under the new rules, employees will know whether their vote will be counted when casting their ballot and have the benefit of knowing the precise contours of the unit in which they are voting.
Finally, the Final Rule modifies the 2014 amendments by again providing the parties the right to call, examine, and cross-examine witnesses, and to introduce factual evidence that supports the party's positions on questions of representation and voter eligibility. Under the 2014 amendments, parties could be limited to presenting evidence through an offer of proof process that did not provide a right to present witnesses and evidence.
Post-Hearing Briefs. 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. Under the Final Rule, briefs will be due within five business days of the close of hearing; however, hearing officers may grant an extension of up to ten additional business days for good cause. The 2014 amendments had removed the right of the parties to file post-hearing briefs, providing that they would be permitted only upon "special permission of the Regional Director and within the time and addressing subjects permitted by the Regional Director." Absent such permission, parties were limited to presenting their position via oral argument at the close of the hearing.
Election Scheduling. The Final Rule states that "[t]he 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 20th business day after the date of the direction of election." The final rule further explains that the timeline "is largely consistent with Board procedures prior to the 2014 amendments, which provided that the regional director would normally schedule an election 25 to 30 days after the issuance of the direction of election."
Pre-Election Requests for Review. If either party files a request for review within ten days after a direction of election, and the Board has not granted or ruled on the request prior to the election date, all ballots whose validity might be impacted by the request will automatically be impounded. A party can still file a request for review at a later time, but the pendency of such a request for review will not require impoundment of the ballots. Under the 2014 amendments, a request for review would not stay the election or result in the impoundment of ballots unless specifically ordered by the Board.
Voter List. When the Final Rule takes effect, employers will have five business days to provide the voter list following the direction of election or stipulated election agreement. Under the 2014 amendments, employers had only two business days to provide the list. The Final Rule, however, does not change the scope of information that needs to be included with the voter list.
The Final Rule states that it is preferable to provide more time for employers to gather and submit the voter list, and that the 2014 amendments accorded too little weight to concerns that favor permitting more time. According to the Final Rule, the additional time will reduce the potential for inaccurate lists and "if providing the employer with 3 more business days to compile the list can avoid having just a few elections set aside based on noncompliant voter lists, this is a trade we are more than willing to make, given that rerun elections greatly delay the final resolution of a question of representation." Notably, the provision of the twenty-business-day period between the direction of election and the election itself means that the extra time for providing the voter list will not contribute to any delay in election scheduling.
Election Observers. When selecting election observers, whenever possible a party should select a member of the voting unit. But when no such individual is available, a party should select a current nonsupervisory employee. The prior rules simply provided that parties may be represented by observers and did not limit observers to employees.
Certification of Results. Regional directors will no longer certify election results if a request for review is pending, or before the time has passed during which a request for review could be filed. Under the 2014 amendments, regional directors had to certify election results despite the pendency or possibility of a request for review. As noted in the Final Rule, under the 2014 amendments, a certified union could demand bargaining and file unfair labor practice charges alleging an unlawful refusal to bargain—even as the Board considered a request for review that, if granted, could revoke the certification.
While retaining the essentials of existing representation case procedures, the Final Rule modifies the 2014 amendments to permit parties additional time to comply with various pre-election requirements, clarifies and reinstates some procedures that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues prior to an election, and make other changes to better balance the need for expeditious elections with the efficient, fair, and accurate resolution of questions of representation. While the refined timeline for representation elections will undoubtedly help employers communicate with their employees during the course of representation elections, we do not expect union organizing to slow down. The most recent Gallup poll on the subject indicated that union approval is near a 50-year high, with 64% of Americans approving of labor unions. Further, in fiscal year 2018, unions won 69% of the elections they filed with the Board. Thus, employers should continue to take active steps to better understand workplace issues, improve employee morale, and reduce the threat of unionization.
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