In December 2019, the National Labor Relations Board finalized a rule to modify its union election procedures. This action will slow down the election process, giving companies more time to respond to election petitions. It ends a five-year reign of so-called “quickie elections.”
The new procedures will be in place beginning April 16, 2020.
2014 “Quickie-Election” Rules
The NLRB substantially changed its election procedures in 2014. Under the Obama Administration, the Democrat-led NLRB revised the rules to expedite elections. Those changes were primarily intended to reduce companies’ opportunity to respond to union organizing efforts. In other words, making it easier for employees to unionize.
In addition to condensing the timeline, the 2014 rules created a new disclosure requirement for employers. They required companies to provide extensive information about their workforce and response to the election petition in writing often in one week.
More Balanced Approach
As of April 16, 2020, the rules will change again to give employers more time to respond. The now Republican-led Board has not, however, completely reverted to the pre-2014 union election procedures.
There are many nuances to these procedures. Here are just some of the most impactful changes:
More Time Before Pre-Election Hearing
The 2014 rules provided for a pre-election hearing as soon as 8 days after the union filed an election petition.
The new rules delays hearing to the 14th business day. As before, the NLRB Regional office can postpone the hearing for good cause.
Statement of Positions Remains
Employers understandably did not appreciate the new requirement of preparing and submitting a Statement of Position after receiving an election petition. However, the NLRB has decided to keep that requirement in place. But they are making a couple of compromises in this area.
First, employers will now have 8 business days to file the Statement of Position. Under the 2014 rules, they often only had 7 calendar days, with a hearing to follow the next day.
Second, unions must now also file a written Statement of Position. The union has until 3 days before the hearing to do so.
Expanded Scope of Pre-Election Hearings
The 2014 union election procedures limited the subject matter of pre-election hearings to relatively few subjects. Fundamentally, they were limited to determining whether a question of representation exists. This required an appropriate bargaining unit to be identified, but did not allow employers to litigate individual voter eligibility or inclusion in the bargaining unit before the election. If the parties did not mutually agree on those issues, the NLRB would decide them after the election, if necessary, depending on the results.
Under the new rules, voter eligibility and unit inclusion issues usually will be part of the pre-election hearing process. This includes litigation over supervisory status. That question can be significant, as supervisors are not eligible to join a unionized bargaining unit. Moreover, employers can rely on supervisors as part of their election preparations. Thus, it is valuable to know who does and doesn’t qualify in that capacity under the National Labor Relations Act before the election takes place.
The new rules will also bring back the right for parties to call witnesses at the pre-election hearings. The 2014 rules limited the ways parties could present evidence at this stage.
Post-Hearing Briefs
With a focus on quick elections, the 2014 rules eliminated written post-hearing briefs by the parties. They would just be something else taking time to prepare, read, and respond to, after all!
The new union election procedures will allow the parties to summarize their positions in writing after the pre-election hearing. They have 5 business days after the hearing to submit briefs. The hearing officer can allow up to 10 additional days.
Scheduling the Election
Before the 2014 rule changes, union elections usually occurred 25-30 days after the direction of an election. That means, once the parties resolved all preliminary matters, either mutually or by hearing decision, the election would take place about 4 weeks later.
The 2014 union election procedures, moved that timeline up considerably. They required a Regional Director to “schedule the election for the earliest date practicable . . . .” That resulted in reducing the time between petition and election from 38 days to 23 days. The NLRB shows these statistics here.
The rules effective April 16, 2020, will return closer to the pre-2014 timeline. They provide that regional directors “normally will not schedule an election before the 20th business day after the date of the direction of election.”
More Time for Voter Lists
Once an election is scheduled, the employer must give the union a list of all eligible voters with contact information. Under the 2014 rules, companies only had 2 days to do so following the direction of an election. Now they will have 5 days.
Good and Bad News for Employers
Most companies should welcome these changes to the NLRB’s union election procedures. If nothing else, it gives you more time to respond if you do receive an election petition. And most employers will welcome the time to review their options in hopes of staying union-free.
But, there is a potential short-term downside to the rule changes. Significantly, they don’t take effect until April 16, 2020. Before then, the 2014 union-friendly rules remain in effect. This may result in unions rushing to begin election proceedings under the “quickie election” rules.
Companies that have any concern of a potential union organizing effort should evaluate the heightened possibility of an election petition in the first quarter of 2020. It is always better to be proactive if you want to keep a union out. This primarily means doing the right thing by your employees. But it also includes knowing the relevant procedures, legal parameters, and other logistical best practices. If you have any concerns in this area, you should consult with an experienced labor attorney sooner rather than later.
For more on what the NLRB has been up to, check out our upcoming webinar: NLRB 2020: Updates for All Private Sector Employers