On December 18, 2019, the National Labor Relations Board (“NLRB”) released a final set of Rules (the “2019 Rules”) scaling back the series of expedited union election rules and procedures that were previously enacted during the Obama administration in 2014 and viewed as hostile to the interests of management. The 2019 Rules, which were published in the Federal Register the same day, may be accessed here.
The Board’s retreat from the 2014 Rules, which employers called the “ambush election rules,” was described by NLRB Chairman John F. Ring in a press release as “common sense changes to ensure expeditious elections that are fair and efficient.” Chairman Ring added, “The new procedures will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.” The 2019 Rules will become effective April 16, 2020 – 120 days after their publication in the Federal Register.
Many key changes instituted by the 2019 Rules include lengthening the union election timeline, which employers felt was severely compressed by the 2014 Rules. Under the 2014 Rules, pre-election hearings could be held as quickly as 8 calendar days after the filing of an election petition. The 2019 Rules push pre-election hearings back to 14 business days after the commencement of election proceedings, giving employers additional time to investigate election issues and gear up for potential hearings. Employers also now have 5 business days to post and distribute notices of petition after proceedings have begun. Under the 2014 Rules, employers had only 2 business days to complete this critical step.
The 2019 Rules also give non-petitioning parties (which are invariably employers) 8 business days to submit statements of position (“SOP”) after the filing of an election petition, which sets the groundwork for legal issues that can be raised at pre-election hearings. The 2014 Rules gave non-petitioning parties only 6½ calendar days to file SOPs, making employers scramble to identify and persuasively argue legal issues at the pre-election hearing stage. The 2014 Rules also placed this burden on non-petitioning parties alone. The 2019 Rules also require, for the first time, that election petitioners file their own responsive SOPs within 3 business days of pre-election hearings.
Additionally, the 2019 Rules remove major restrictions on topics that may be litigated at pre-election hearings. The 2014 Rules limited the scope of pre-election hearing issues to whether there were valid questions concerning union representation. Debates over whether individual persons or groups of people, like supervisors and managers, should be excluded from bargaining units could not be raised until after the election itself. With the 2019 Rules in place, questions of bargaining unit inclusion are once again fair game at pre-election hearings, and employers can know which employees are (and are not) included in voting units and may act accordingly before any ballots are cast.
The 2019 Rules also restore the right to file post-hearing briefs, which may be filed within 5 business days after pre- and post-election hearings. The 2014 Rules had completely eliminated post-hearing briefs from union election proceedings, and employers could only file formal legal arguments in the compressed timeframe leading up to the pre-election hearing. The 2019 Rules further decompress the timeline by setting elections no earlier than 20 business days after the presiding NLRB Regional Director finds that all prerequisites for holding an election have been satisfied.
When the Regional Director gives the union election greenlight, employers can once again challenge this decision by filing a Request for Review with the NLRB within 10 business days of the adverse decision. Under the 2014 Rules, employers could only challenge adverse election rules after the elections themselves. Election results also cannot be certified if a Request for Review is still pending; the 2014 Rules had eliminated this practice, causing an uptick in disorderly and vexatious litigation.
Stay tuned for further updates as NLRB union election issues continue to develop. In the meantime, if you have any questions about how this or any other labor and employment law development may affect your business, please contact Daniel J. Sobol at djso@stevenslee.com, Alexander V. Batoff at avb@stevenslee.com, or the Stevens & Lee attorney with whom you regularly work.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.
