On August 25, 2023, the National Labor Relations Board (NLRB) issued a final rule that substantially alters the timelines and procedures for conducting elections in union representation campaigns. By calling for a return to the regime originally implemented under the Obama administration in 2014, the NLRB decisively rejected Trump-era policies that had given employers additional time to respond to representation petitions.

Assuming that it is not stayed by a court, the new rule will go into effect December 26, 2023. Employers who are facing ongoing unionization campaigns or who anticipate the possibility of such campaigns should begin preparing for the new rule now. Doing so will enable employers to have ample time to implement a strategy and effectively campaign against unionization.

Background of the Rule

For decades, the Board has oscillated politically with the changing of presidential administrations. The Obama Board implemented a number of measures that were widely seen as favoring unions, and the Trump Board did away with many of these measures. Not surprisingly, President Joe Biden, who came into office promising to be the "the most pro-union president in American history," has moved to reverse his predecessor's pro-employer initiatives by restoring and strengthening Obama-era policies.

One of the Obama Board's initiatives was aimed at speeding up the process by which unions become certified. In 2014, the Board issued a rule that was intended to streamline and expedite the election process. The 2014 rule survived a number of legal challenges, but fell victim to political changes. In 2019, the Trump Board revised the rule to give employers more time to respond to representation petitions.

According to the Biden Board, the 2019 rule introduced unnecessary delays into the representation procedure. Under the 2014 rule, roughly 90 percent of representation cases were decided within 100 days; under the 2019 rule, the rate dropped to about 80 to 85 percent. In order to shorten the time between the filing of representation petitions and elections, the Biden Board has called for a return to the 2014 rule.

Major Changes

Although the NLRB's new rule leaves the basic framework for union elections intact, it introduces a number of important changes to the timeline:

  • Shortening the time between the notice of a pre-election hearing and the hearing itself from 14 business days to eight calendar days;
  • Requiring employers to post and distribute notices of hearings within two business days rather than five business days;
  • Moving up the deadline for the employer to file its statement of position from eight business days to seven calendar days;
  • Relieving unions from the obligation to file a written statement of position three business days prior to a pre-election hearing and requiring them only to respond orally to the employer's statement of position at the time of the hearing;
  • Eliminating the 20-business-day mandatory waiting period between the direction of an election and the election itself; under the new rule, elections will be held on "the earliest date practicable."

In addition, the new rule makes it more difficult for regional directors to grant employers' requests for postponements. Where the 2019 rule allowed regional directors to postpone pre-election hearings and deadlines for filing statements of position upon a showing of good cause, the new rule allows for a two-business-day extension upon a showing of "special circumstances." Longer postponements will only be granted upon a showing of "extraordinary circumstances." According to the Board, these changes will make procedures more consistent between regions.

The new rule also introduces several measures designed to streamline the hearing and election process. Where the current regime allows for employers to issue objections concerning individuals' eligibility to vote or the appropriateness of their inclusion in a unit at the pre-election hearing, the new rule envisions that these disputes will be litigated after the election?if at all. The pre-election hearing will focus solely on whether a question of representation exists.

Finally, the new rule limits both sides' ability to file post-hearing briefs. Where the current system allows a party to file briefs after pre- or post-election hearings, the new rule states that such briefs will require special permission from the regional director or hearing officer, who may also restrict the subjects that may be briefed.

What This Means for Employers

When a union files a representation petition, an employer must act immediately and expeditiously to respond on two levels: (i) its legal strategy and (ii) its campaign messaging. With shortened time frames from the filing of a petition to an election, employers will be at a major disadvantage in comparison to the union, which likely has been planning and campaigning for many months. Therefore, employers should seriously consider redoubling their efforts now to watch for possible unionization campaigns, thinking through their campaign strategy and preparing employee messaging so that they are ready to jump into action as soon as they are aware of union organizing and certainly no later than the filing of a petition.

NLRB deadlines are extremely strict, and missing one by even a minute can have dire consequences for an employer. Under the current system, the timeline for responding to a representation petition is already very tight. Under the new rule, the timeline will be tighter still.

Meeting Board deadlines requires efficient, coordinated communication between an employer and its labor counsel. Any employer that is currently facing a unionization campaign or that anticipates the possibility of a campaign should act now to ensure all necessary information is available and accessible so that it can be promptly shared with counsel. Employers who anticipate the filing of petitions will be better equipped to meet the new deadlines than those who are taken by surprise.

The Board has taken the position that the new rule is exempt from notice and comment procedures because it addresses issues of agency procedure and because it merely returns to provisions that resulted from notice and comment rulemaking in 2014. While employers are likely to challenge the rule by arguing that it should have gone through more extensive rulemaking procedures, it is not yet clear whether these challenges will succeed. Thus, employers should act now so that they are prepared in the event that the rule goes into effect in December.

Major changes are summarized below:

Current Rule

New Rule

Pre-election hearing opens 14 business days from service of notice of hearing.

Pre-election hearing opens eight calendar days from service of notice of hearing.

Regional directors can postpone pre-election hearings for an unlimited amount of time upon showing of good cause.

Regional directors can postpone pre-election hearings by two business days upon a showing of special circumstances and for more than two business days upon a showing of extraordinary circumstances.

The nonpetitioning party's statement of position must be filed eight business days (or 10 calendar days) after service of notice of hearing.

Statement of position must be filed by noon on the business day before the opening of the pre-election hearing. (Generally this will be seven calendar days after service of notice of hearing.)

Regional directors can postpone the due date for statement of position for an unlimited amount of time upon a showing of good cause.

Regional directors have discretion to postpone the due date for statement of position for up to two business days upon a showing of special circumstances and for more than two business days upon a showing of extraordinary circumstances.

Petitioner must file and serve a written statement of position three business days prior to pre-election hearing.

Petitioner must respond orally to the statement of position at the start of the pre-election hearing.

Employer has five business days after service to post and electronically distribute a notice of hearing.

Employer has two business days after service to post and electronically distribute notice of hearing.

Disputes concerning individuals' eligibility to vote or their inclusion in an appropriate unit are normally litigated at the pre-election hearing and resolved prior to the election.

Disputes concerning individuals' eligibility to vote or their inclusion in an appropriate unit ordinarily do not have to be litigated and resolved prior to election; regional directors have authority to exclude evidence that is not relevant to determining whether there is a question of representation.

Parties are entitled to file post-hearing briefs up to five business days following the close of a pre- or post-election hearing; extensions of an additional 10 business days are available upon a showing of good cause.

Post-hearing briefs are only allowed with the special permission of the regional director (for pre-election hearings) or hearing officer (for post-election hearings). The regional director or hearing officer has the authority to identify the subjects that may be briefed.

Regional directors are allowed to convey election details (type, date, time, location, eligibility period) in the decision and direction of election, but they may also convey them in a later notice of election.

Regional directors should ordinarily specify election details in the decision and direction of election and simultaneously transmit them in a notice of election.

There is a mandatory 20-business-day waiting period between the decision and direction of election and the election itself.

No mandatory waiting period. Elections should be scheduled for "the earliest date practicable."


For More Information

If you have any questions about this Alert, please contact Eve I. Klein, Jesse Stavis, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

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