This holiday season, the National Labor Relations Board (NLRB or the “Board”) has bestowed a gift on organized labor. On December 26, 2023, significant, labor-friendly changes made by the NLRB for processing representation cases will go into effect.   The changes which are often referred to as the “ambush” or “quickie” election rules, mark a return to key election procedures originally put in place by the Obama-era Board in 2014. As HR Legalist discussed at the time, “quickie” election rules dramatically accelerate the timeline between when a union files a petition to represent a group of employees and when the NLRB schedules the election. The accelerated timeline leaves very little time for employers to respond and educate their employees about unions and a union’s potential impact on their work environment.

Updated Guidance from NLRB General Counsel:

On December 8, 2023, NLRB General Counsel Jennifer A. Abruzzo, published a guidance memorandum detailing the most significant differences between the prior election rule from 2019 and the new 2023 Election Rule. According to the memo, the new election rule will “meaningfully reduce the time from petition filing to election and expedite the resolution of any post-election litigation thereby achieving the goal of fairly, efficiently and expeditiously resolving questions concerning representation.” The most significant changes of the 2023 Election Rule can be summarized as follows:

• Expedited Scheduling of Pre-Election Hearings: Hearings will now be scheduled 8 calendar days from when the employer receives a Notice of Hearing, whereas, under the previous rule, hearings would be scheduled 14 business days after receiving such notice.
• Limited Postponement of Pre-Election Hearing and Employer’s Position Statement: While the regional director could postpone for any duration of time under the prior rule for “good cause,” under the previous rule, now these dates can only be postponed for 2 business days if a party demonstrates “special circumstances” and more than 2 business days in “extraordinary circumstances.”
• Limited Pre-Election Challenges: Disputes concerning an individual’s eligibility to vote or be included in the petitioned-for bargaining unit will not be litigated or resolved prior to the election. An employer may not know the legal supervisory status of an employee prior to the election. In practice, this means that the employer’s ability to campaign is limited, and the employer has increased exposure to an unfair labor practice committed by an employee who is later deemed by the NLRB to be a supervisor.
• Submission of Employer’s Statement of Position: The non-petitioning party (i.e. the employer) must file and serve its Statement of Position by noon on the business day prior to the pre-election hearing. Effectively this means the Statement of Position is due 7 calendar days after the Notice of Hearing.
• Responsive Statement of Position: The petitioner is no longer required to respond to the employer’s Statement of Position in writing in advance of the hearing. Now, the petitioner need only respond orally at the start of a pre-election hearing.
• Shorter Timeframe for Posting of Notice of Petition for Election: An employer has 2 business days after the Board serves the Notice of Hearing to post and distribute the Notice of Petition for Election. Under the previous rule, the employer had 5 business days to post and distribute the Notice.
• Limited Briefing: Parties may file post-hearing briefs with the regional director only if the regional director gives special permission following a pre-election hearing, or, parties may file post-hearing briefs with the hearing officer’s special permission following a post-election hearing. In both situations, briefs must be submitted within the timeframe determined by the regional director or hearing officer and addressing only those subjects permitted by the regional director or hearing officer.
• Faster Elections: Regional directors are to schedule an election at “the earliest date practicable,” removing the 20-business-day period between the issuance of a decision directing an election and the scheduled election. In practice, this means elections will likely be scheduled around 3 weeks after a petition is filed.

Takeaway: 

Considering the new 2023 Election Rule and the previously discussed decision in Cemex Construction Materials Pacific, LLC, we expect an increase in election petitions after December 26, 2023, and into 2024. Because employers will be operating with limited time after a petition is filed, they should be prepared with information on potential issues before they arise. To prepare, employers should review their workforce to understand the scope of potential bargaining units and the supervisory status of employees. They should also identify opportunities to educate employees on the potential impact of unionization and how to effectively accomplish that task.

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