On June 1, 2020, the NLRB announced some good news for employers faced with responding to a union election petition filed with the NLRB. We explain below.

Background. With the election of President Trump, one of the business community's highest priorities was the reform of Obama-era NLRB election rules. Business leaders felt those rules were designed to give unions an unfair advantage by mandating that most NLRB representation elections be conducted in just three weeks. Dubbed the “quickie election” rules, employers claimed the rules gave unions an unfair advantage in election matters by allowing unions months, or even years, to garner support among a group of employees, yet the employer often had just a few weeks to express its position before employees would have to vote on whether the employer would become unionized. The agency finally got around to addressing this concern head-on last December by issuing a set of new election rules designed to return the NLRB election process to the pre-Obama rules.

New Rules That Are Blocked . Not surprisingly, organized labor galvanized to fight the new rules. The AFL-CIO sued to block the new rules, arguing that the NLRB failed to provide the requisite prior notice and public comment period for an agency to change its rules. A federal judge agreed and on May 30 issued an injunction blocking five of the rules from being implemented. Although these important rules are now on hold while the NLRB appeals, the remainder of the rules went into effect on June 1. The rules that were blocked:

  • Allow pre-election hearings to determine the scope of the voting unit and various eligibility issues, such as employee/supervisor status (under the Obama-era rules, such matters were relegated until after the election in most cases);

  • Schedule elections not less than 20 business days after a Regional Director directs an election (instead of the “earliest practical date,” which under the existing rule is typically just 4 to 8 business days after the NLRB Regional Director’s decision);

  • Permit employers more time to provide a voter eligibility list to the NLRB and other parties (it would be 5 business days after the Regional Director’s direction of election; it is just 2 days under the existing rules);

  • Require election observers to be current employees in the voting unit, unless none are available (the current rule permits terminated employees who are challenging their termination to return to the workplace and sit as NLRB election observers); and

  • Prohibit Regional Directors from certifying election results when a request for review is pending.

New Rules Implemented. The fate of the five enjoined rules now rests in the hands of the D.C. Circuit Court of Appeals. A decision isn’t expected until next year. Meanwhile, the remainder of the NLRB’s new rules went into effect on June 1. These new rules are likely to benefit employers when confronting an NLRB election petition by:

  • Scheduling pre-election hearings at least 14 business days (rather than 8 calendar days) from issuance of a notice of hearing, and giving Regional Directors greater discretion to postpone the hearing;

  • Allowing employers 5 business days (instead of 2 business days) after issuance of the notice of hearing to post the required Notice of Petition for Election;

  • Allowing non-petitioning parties (the employer in most cases) 8 business days (rather than 7 calendar days) after the issuance of the notice of hearing to file a statement of position;

  • Requiring petitioners (unions in most cases) to file a responsive statement of position 3 business days before the hearing (instead of waiting until the hearing to take a position);

  • Allowing parties the right to submit briefs 5 business days after a pre-election hearing (instead of requiring special permission from the Regional Director to do so), and allowing hearing officers to grant the parties up to 10 business days to submit such briefs;

  • Allowing Regional Directors to exercise discretion in deciding whether to issue a notice of election with a decision directing an election or to issue the notice separately after consulting with the parties;

  • Requiring the impounding of ballots when the Board has not ruled on a request for review that is filed within 10 business days of a direction of election;

  • Allowing parties to delay filing a request for review until after an election has been conducted and the ballots counted, and prohibiting piecemeal requests for review of some issues before and other issues after the election (which was unclear under the prior rules);

  • Allowing the filing of oppositions to requests for review in all cases, and permitting replies to such oppositions only with permission of the Board;

  • Defining all time periods as “business” days, thereby excluding weekends and federal holidays from the calculation (instead of a mixture of business days and calendar days); and

  • Amending other minor procedural and technical requirements.

While the court order blocks implementation of five significant amendments sought by the business community, employers nevertheless should greatly benefit from the new rules which are now in effect. Employers will have improved opportunities to litigate their election rights and educate employees prior to the election taking place. Under the new rules, most NLRB elections will not be scheduled any sooner than four or five weeks from a union’s filing of a petition. Likewise, employers will not be required to meet exceptionally short deadlines (e.g., posting a notice of election within 2 business days), which if not met could be the basis for overturning an employer election victory.

If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact or visit us online at www.brgslaw.com .

Matthew Wakefield
Eric W. Mueller
Charles Foster
Ballard Rosenberg Golper & Savitt, LLP