NLRB Releases Election Process Rule

Sean P. Redmond
Vice President, Labor Policy, U.S. Chamber of Commerce

Published

December 17, 2019

The National Labor Relations Board (NLRB) on December 13 releasedits much-anticipated changes to union representation election procedures designed to address the Obama-era Board’s so-called “ambush election” rule. The new procedures are significant both in their substance as well as in the manner by which the NLRB chose to adopt them. The final rule will be published in the Federal Register on December 18, 2019 and take effect 120 days thereafter.

In 2014, the Obama NLRB released its ambush election rule, which purported to “remove unnecessary barriers to the fair and expeditious resolution of representation cases, simplify representation case procedures, codify best practices, and make them more transparent and uniform across regions.” In reality, the Board’s rule put in place a process designed to undermine employers’ rights during the election process and limit the ability of employees to hear from both sides during a unionization campaign.

The U.S. Chamber of Commerce hasconsistentlycriticized the ambush election rule and in 2018calledon the NLRB to address its election procedures. The Board’s new rule addresses several of the concerns identified by the Chamber and other representatives of the business community.

In particular, the rule addresses the following issues:

Statements of Position.The old rule provided employers only seven days to respond to a representation petition with a Statement of Position prior to a hearing to be held eight days after notification of the petition. The new rule provides employers eight business days to respond and a hearing to be scheduled 14 business days after notification. It also allows those timelines to be adjusted under certain circumstances.In addition, under the old rule, issues omitted from Statements of Position could not be raised later, whereas the new rule will allow both the employer and union to amend their Statements for good cause. The new rule also requires a written response to aStatement of Position, rather than an oral response at the hearing.
Pre-Election Hearing.The old rule precluded certain disputes over voter eligibility from being argued in the pre-election hearing. The new rule reverses that policy by requiring such issues to be litigated before a representation election occurs unless both parties agree to resolve those disputes after the election.
Post-Hearing Briefing.Under the old rule, an NLRB Regional Director’s (RD) permission was needed to file post-hearing briefings, and the old rule also reverses that policy by allowing parties to file briefs within five business days after a hearing.

Representation Election Timeline.The old rule sought to conduct representation elections on the “earliest date practicable,” whereas the new rule states that elections cannot occur sooner than 20 business days after the direction of an election. The new rule also provides employers five business days to provide a voter list to the union and the NLRB rather than the two calendar days under the old rule.

NLRB Review.Under the new rule, a party may seek a review of an RD’s decision by the NLRB within ten business days of the direction of an election. If the Board has granted the request or not yet ruled on it, the election will be conducted but the results impounded until the Board acts on the request for review, and the RD cannot certify the results of the election. In contrast, the old rule removed the provision for automatic impoundment and required the RD to certify the results of the election. The new rule also states that a party seeking review may not subsequently request review of another part of that same RD action.

The new election procedure rule restores much-needed balance that the NLRB’s ambush election rule upended when it took effect in 2015 and is thus a welcome development. Of course, the rule has not been welcomed by everyone. Critics of the Board have argued that it did not follow the notice and comment procedure typically required under the Administrative Procedure Act (APA). However, the APA does allow an exception for procedural rulemaking such as how the Board administers elections. Suffice it to say, we may not have seen the last of this issue.