The National Labor Relations Board (“Board” or “NLRB”) has announced that it is publishing proposed changes to its Rules and Regulations that will begin to reverse the Board’s 2014 changes, which took effect in 2015, to its representation election rules and procedures commonly referred to as the “ambush election rules.”  The proposed final rule is expected to be published in the Federal Register on December 18, 2019 and to become effective 120 days after publication.

Board Chairman John F.  Ring described the rule changes as “common sense changes to ensure expeditious elections that are fair and efficient. The new procedures will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.” In December 2017, the Board had announced that it was seeking comments concerning parties’ experiences under the 2015 rule changes, to determine what, if any changes, would be beneficial.

The new final rule, which is over 300 pages in length, will, when it takes effect, change many of the most troublesome aspects of the 2014 rules.  The new rule will, among other things:

• Extend the time between the filing of a representation petition from eight to 14 days,
• Extend the time for employers to post the Notice of Petition from two to five days,
• Extend the time for employers to file their the Statement of Position identifying any issues to be resolved before an election can be held eight days after an employer is served with the petition and confirm that the Board’s Regional Directors will have the discretion to allow additional time upon a showing of “good cause, and
• Extend the time employers have to provide the petitioning union and the NLRB with the initial list of employees in the petitioned for unit from two days to five business days.

Significantly, the new final rule will extend the time for the holding of elections.  While the final rule continues to mandate that representation elections be conducted at “the earliest date possible,” the new final rule defines this as normally not “before the 20^th business day after the day of the direction of election.”

The new final rule will add a requirement that a petitioning union also file a written Statement of Position, which will be due three days after the employer’s statement of petition which the Board explains will “result in more orderly litigation by narrowing and focusing the issues to be litigated.”

Parties rights to file post-hearing briefs, which were severely curtailed under the 2014 rules are also substantially restored.  Under the 2014 rules, post-hearing briefs have only been permitted “only upon special permission of the regional director,” and only as to those issues allowed by the Regional Director.

A major change in the new final rule is that the Board will once again allow for the resolution of significant legal issues before an election will be directed, rather than after the vote is held.  Issues concerning the scope of the proposed bargaining unit, supervisory status and other issues will once again be “litigated at the pre-election hearing and resolved by the regional director before an election is directed.”  

Additionally, employers and unions will once again have the right to seek review of such issues by the Board before election results are certified by the Regional Director, who  “will no longer certify the results of an election if a request for review is pending” or before the deadline for filing a request for review.

What Happens Next

 The Board has also announced that it will be revising its Case Handling Manual, which provides guidance to the agency’s staff, to reflect the new final rule.   Litigation challenging the new rule remains a possibility.

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