In a move that marks the return of the Board’s “quickie” election rules, the National Labor Relations Board has announced changes to its representation-case procedures that will dramatically accelerate the pre-election timeline for employers, effective December 26, 2023.
The US National Labor Relations Board (NLRB or Board) published a direct final rule (Final Rule) on August 24, 2023 that rescinds many of the representation-case procedures set forth in the current rule (promulgated in 2019) and reinstates many of the procedures originally implemented in April 2015.[1] A Board majority adopted the Final Rule, with Chairman Lauren McFerran, Member David Prouty, and Member Gwynn Wilcox supporting the Final Rule and Member Marvin Kaplan dissenting.
Fashioned as a “direct final rule” that purportedly makes only procedural, rather than substantive, changes to the current election procedures, the Board published the Final Rule without permitting advance public notice or comment.
The Final Rule will take effect on December 26, 2023, absent a federal court intervention.
BACKGROUND
In December 2014, the Board overhauled its election procedures by publishing a rule in the Federal Register that sped up the pre-election process and generally restricted employers’ time and ability to meaningfully challenge petitioned-for bargaining units. The Board’s 2014 changes were sometimes referred to as the “quickie” election rules due to the relatively short turnaround time from a union filing a petition to the election being held.
The Board made broad-based changes to the “quickie” election rules in December 2019. Among other changes, the 2019 rule provided for a longer pre-election timeline, mandated that a petitioning party (usually the union) file a pre-hearing Statement of Position, and restored parties’ right to file post-hearing briefs following a pre-election hearing.
In March 2020, the AFL-CIO sued in the US District Court for the District Court of Columbia to enjoin the Board from implementing and enforcing the 2019 rule on the basis that certain portions were not “procedural rules” and therefore required the Board to engage in notice-and-comment rulemaking. The court agreed and set aside five challenged portions of the 2019 rule that it held were not procedural. However, the remainder of the 2019 rule, including the changes noted above, went into effect.
A QUICK RETURN TO THE QUICKIE ELECTION RULES
The Final Rule marks a return to the 2014 quickie election rules. Specifically, the Final Rule reimplements the following major changes from the 2014 rule:
Faster Elections. The current rule imposes a 20-business-day period between the issuance of a decision directing an election and the scheduled election. The Final Rule removes that waiting period and instructs Regional Directors to schedule an election for the “earliest date practicable” after the issuance of a decision. That waiting period provided a rule of thumb for Regional Directors when approving election dates under election agreements. The practical impact of this change is that, as with the 2014 quickie election rule, elections will often be scheduled around three weeks after a petition is filed.
Expedited Pre-Election Hearings. Under the Final Rule, the pre-election hearing will be scheduled for eight calendar days from the Regional Director’s service of the Notice of Hearing as compared to 14 business days under the current rule.
Limited Ability to Raise Pre-Election Challenges. The Final Rule provides that disputes concerning individuals’ eligibility to vote or be included in a petitioned-for bargaining unit need not be litigated or resolved prior to the election. Rather, parties will only be allowed to present evidence on “the existence of a question of representation”—i.e., in most cases, whether the petitioned-for unit is “an appropriate unit.”
This is a change from the current rule, which provides that questions about eligibility and inclusion are “normally” to be litigated and resolved prior to an election. The practical impact of this change is that an employer may not know the supervisory status of an employee prior to an election, which may limit the employer’s ability to campaign and also increase an employer’s exposure to objections or unfair labor practices.
Less Time to Prepare for a Hearing. The Final Rule requires the non-petitioning party (historically the employer) to file and serve its Statement of Position by noon on the business day prior to the pre-election hearing. This filing deadline will usually fall on the seventh calendar day after the Board serves the Notice of Hearing. This is a change from the current rule, which provides the non-petitioning party with eight business days to file and serve its Statement of Position.
Limited Extensions for Hearing Dates. Regional Directors will have limited discretion to postpone the deadline for filing a Statement of Position and the pre-election hearing date. While under the current rule a Regional Director may postpone the due date for filing the Statement of Position and/or the pre-election hearing date for any duration based on a showing of “good cause,” the Final Rule allows a Regional Director to postpone these dates for up to two business days only in “special circumstances” and for more than two business days only in “extraordinary” circumstances.
No Responsive Statement of Position. Under the Final Rule, the petitioning party (typically the union) will no longer be required to file a Responsive Statement of Position three business days prior to the opening of the pre-election hearing. The petitioning party need only respond to the non-petitioning party’s Statement of Position orally at the pre-election hearing.
Limited Briefing. The Final Rule eliminates parties’ right to file briefs following the pre-election hearing, leaving the decision to accept briefs in the Regional Director’s discretion. The current rule permits parties five business days to file a post-hearing brief and allows for extensions of up to 10 business days.
Shorter Turnaround for Posting and Distributing the Notice of Petition for Election. The Final Rule provides that an employer will have two business days after the Board serves the Notice of Hearing to post and distribute the Notice of Petition for Election. Currently, an employer has five business days to post and distribute the Notice.
MEMBER KAPLAN’S DISSENT
As the sole dissenter to the Final Rule, Member Kaplan argued that the rule “unquestionably values quick elections over fully informed voters” and posed the question of “how much voters will actually benefit from the requirements that election be held as quickly as possible when they find themselves exercising this right without fully understanding the arguments concerning representation and the ways in which their vote may affect them.”
EMPLOYER TAKEAWAYS
The Board’s return to the quickie election rules, effective on December 26, 2023, adds to the growing list of recent major changes in the labor law landscape. Combined with the August 25, 2023 decision in Cemex, discussed in depth in our August 27 LawFlash, the NLRB continues to construct a legal framework that makes union organizing easier.
There are a few things that employers should do to prepare for this changing landscape. First, employers should review their workforces and prepare unit analyses to understand the contours of potential appropriate bargaining units and the supervisory status of employees (both to determine unit inclusions and exclusions and who might be able to convey the employer’s messages for a campaign). Because of the short time frames—eight calendar days from the filing of a petition to a hearing—employers do not have much time to understand and analyze potential unit issues following a petition being filed.
Second, employers should prepare and train their internal partners on these expedited timelines to ensure that no deadlines are missed or defenses waived—time is of the essence. This will be particularly important given the Board’s changes in Cemex to how employers must respond to requests for recognition.
Finally, in addition to greatly reducing the length of time between the filing of the petition and the election, the accelerated timelines reimplemented in the Final Rule effectively limit an employer’s opportunities for lawful campaign speech during the pre-election period.
Combined with other limitations on employer speech that the NLRB’s General Counsel is pursuing, as well as the risk that the Board has created for employer campaigns in Cemex (which shifts the burden to employers to file the petition and imposes a default bargaining order for any unfair labor practices committed during an election), it is important for employers to thoughtfully prepare for campaigns so that they are ready to hit the ground running.
[1] Representation-Case Procedures, Direct Final Rule, 88 Fed. Reg. 58,076 (Aug. 25, 2023) (to be codified at 29 C.F.R. pt. 102).
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