On Aug. 25, the National Labor Relations Board (NLRB) published a Final Rule that will reduce the time between the filing of a union election petition and the date the election occurs. The new rule largely reverses the 2019 election rules (“2019 Rule”) instituted by a then-Republican Board and returns to the Board’s election procedures in place since 2014, which critics have labeled “quickie election” rules.

The Board previously rescinded parts of the 2019 Rule that were struck down last year by the U.S. Court of Appeals for the D.C. Circuit. The new rule will become effective Dec. 26.

Highlights of the new rule include:

• Pre-election hearings will generally be scheduled eight calendar days from the service of the Notice of Hearing. Under the 2019 Rule, the pre-election hearing would generally be scheduled 14 business days from service of the Notice of Hearing.
• A non-petitioning party’s Statement of Position will generally be due by noon on the business day before the opening of the pre-election hearing, usually the seventh calendar day after service of the Notice of Hearing. Under the 2019 Rule, a non-petitioning party’s Statement of Position was due to be filed eight business days (or 10 calendar days) after service of the Notice of Hearing.
• Regional directors will have more limited discretion to postpone pre-election hearings and the due date for filing a Statement of Position. They’ll have up to two business days upon request of a party showing special circumstances and more than two business days upon request of a party showing extraordinary circumstances. Under the 2019 Rule, regional directors could postpone a pre-election hearing or Statement of Position due date for an unlimited amount of time upon request of a party showing good cause.
• Responsive Statements of Position by petitioners will be delivered orally at the pre-election hearing. Under the 2019 Rule, Responsive Statements of Position had to be filed three business days prior to the pre-election hearing.
• Employers must post and distribute the Notice of Petition for Election within two business days after the service of the Notice of Hearing. Under the 2019 Rule, an employer had up to five business days to distribute and post this notice.
• Disputes concerning eligibility to vote or inclusion in an appropriate unit will not ordinarily be litigated or resolved prior to an election. Under the 2019 Rule, individual eligibility and inclusion issues were normally litigated at the pre-election hearing and resolved prior to the election.
• All parties will have the option for oral argument before the close of the hearing; written briefs will be allowed only if the regional director or hearing officer gives special permission. Under the 2019 Rule, briefs could be filed at least five business days following the close of the hearing, with an extension of an additional 10 business days for good cause.
• The new rule does away with the 20-business-day waiting period between issuance of the decision and direction of election and the election date. The regional director will schedule elections for “the earliest date practicable” after issuance of the decision and direction of election.

Employer Takeaways

These new election rules, in combination with the Board’s recent decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, will make the path to union recognition significantly easier by reducing the time between an election petition and the election. Accordingly, employers should be prepared to respond quickly to demands for recognition and union election petitions. Click here to read our blog post on the Cemex decision.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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