NLRB’s Revised Election Rules to Take Effect (Partially)

In December 2019, the National Labor Relations Board (the “NLRB”) announced amendments to its rules for conducting representation elections. (See our previous alert discussing the changes here). Labor groups challenged the amended rules claiming that the NLRB did not provide the public with notice of these changes or an opportunity to comment. The NLRB took the position that the rule changes were merely procedural (rather than substantive) and thus a notice-and-comment process was not required.

On May 30, 2020, Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia issued an order enjoining implementation of five aspects of the 2019 Amendments. Specifically, Judge Jackson enjoined rules surrounding the timing of both union election dates and voter lists; the eligibility of election observers; the time frame under which NLRB regional directors certify workers’ bargaining representatives; and the reinstitution of hearings before elections so parties can resolve issues pertaining to voter eligibility.

Judge Jackson’s order, however, did not invalidate all of the amended rules. On June 1, the NLRB announced that it would implement all amendments that had not been specifically enjoined by the order. Additionally, in a statement reacting to Judge Jackson’s order, the NLRB announced plans to appeal her decision to an appellate court soon after the judge issues a formal opinion.

Peter Robb, the General Counsel for the NLRB, issued a memorandum on June 1 providing specific guidance to NLRB Regional offices on how to implement the rules. The non-enjoined rule changes apply to all election petitions filed after May 31. A copy of General Counsel Robb’s memorandum can be found here. The rule changes effective May 31, in part include:

• Pre-Election Hearings: Pre-election hearings will generally be scheduled 14 business days (rather than 8 calendar days) from the date that a notice of hearing issues, and Regional Directors will have more discretion to postpone hearings.
• Notice of Petition for Election: Employers must post and distribute a Notice of Petition for Election within five business days after service of the notice of hearing (rather than two calendar days).
• Non-Petitioning Party’s Statement of Position: Non-petitioning parties (usually employers) must file a Statement of Position eight business days after service of the notice of hearing (rather than seven calendar days), and Regional Directors will have greater discretion to grant extensions.
• Petitioning Party’s Statement of Position: Petitioners (usually unions) must file a Statement of Position responding to the issues raised in any non-petitioning party’s Statement of Position. This Responsive Statement of Position is due at noon three business days before the hearing. Currently, petitioners must respond to the Statement of Position on the record at a pre-election hearing, but not in writing.
• Business Day Calculation: All time periods applicable to the election rule are calculated based on business days as opposed to calendar days. The 2019 Amendments define how business days are calculated, including clarification that only weekend days and federal holidays are not designated business days in time period calculations.

While only a portion of the NLRB’s 2019 amendments have gone into effect, these amendments will have a major impact on how union election petitions are processed by the NLRB. This is especially true given the logistical challenges presented by the COVID-19 global pandemic. For a discussion on how the NLRB is handling elections during this time please click here.

Companies who are in the midst of a union organizing campaign or others who have questions regarding these rule changes should consult Daniel Sobol, Joseph Hofmann, Brandon Shemtob 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.