Legal Updates

Broad Revisions To NLRB Election Rules Soon To Take Effect

Citing the need to “create a fairer and more efficient election process,” the National Labor Relations Board (“NLRB” or “Board”) has significantly amended its 2014 overhaul of the agency’s representation case procedures (a/k/a the “quickie election” rules). These latest revisions, which were announced through a Final Rule issued last December, are set to go into effect on April 16, 2020.

The upcoming changes to the Board’s election procedures include the following:

• Various timeframes and deadlines have more than doubled, including the scheduling of pre-election hearings following a petition for election, the deadlines for employers to distribute election notices, and the deadlines for employers to provide Excelsior voting lists;

• Ballots will now automatically be impounded pending the outcome of a timely request for review of a decision and direction of election; and

• Election results will be placed on hold until the deadline has passed for filing a request for review of the decision directing an election and, if a request is filed, pending the outcome of any such request.

This long-awaited action comes after a relative lull from the Board on the topic following its 2017 Request for Information, which had sought input from the public on whether to retain, rescind, or modify the 2014 rules. Chairman John F. Ring has described the new amendments as “common sense changes to ensure expeditious elections that are fair and efficient,” which “will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.”

Background

The Obama-era Board’s 2014 “quickie election” rules were designed to significantly speed up the process of certifying a union as the collective bargaining representative for employees. Among other things, the 2014 rules significantly shortened the time period between the filing of a petition for an election and the holding of an election to determine whether a union will be certified as the employees’ collective-bargaining representative. Those rules also sharply limited employers’ ability to engage in legal challenges prior to an election.

In addition, the 2014 rules were intended to make it easier for unions to communicate their organizing messages to eligible voters by, inter alia, expanding the content of mandatory Excelsior voter information lists and requiring those lists to be provided to unions much more quickly than before.

2020 Amendments

The changes detailed in the NLRB’s Final Rules significantly dial back some of the most employer-burdensome elements of the 2014 rules, paving the way for parties to litigate and resolve unit scope and voter eligibility issues prior to a union election, and also extending the time periods for compliance with some of the pre-election requirements instituted in 2014.

Below is a table detailing the most substantive changes:
 

In addition to the above, the revised rules include “incidental changes” in terminology and cross-references, and streamline the procedural and formatting requirements for requests for review and oppositions.

Unlike the 2014 “quickie election” rules, which garnered tens of thousands of comments before their adoption, the Board issued these latest amendments as a Final Rule without opportunity for notice and comment. Member Lauren McFerran, whose term on the Board expired on December 16, 2019, sharply dissented from the Final Rule, arguing that the majority should have invited comments before revising the 2014 rules and was acting arbitrarily and capriciously by issuing the amendments without sufficiently examining agency data. In response, the Board majority defended its actions by explaining that procedural rules are statutorily exempt from notice and comment, and noted the Board’s long history of unilaterally amending its representation case procedures.

Member McFerran also criticized the Board for effectuating “unnecessary delay at each stage of the representation case process.” Her dissent included the following graphic showing her calculation of the election delays that the amendments to the Board’s election procedures would create:






The Board majority “readily concede[d]” that its amendments would lengthen the election timeline, “particularly in contested cases,” but contended that this result would not amount to an unreasonable delay of the conduct of a “fair election in which votes are recorded accurately, efficiently, and speedily.”

Takeaways for Employers

The upcoming revisions to the Board’s election rules do not amount to a wholesale reversal of the 2014 quickie election rules. For instance, the 2014 rules’ expanded Excelsior voting list obligations – including the obligation to electronically furnish email addresses, phone numbers, and other voter information beyond names and addresses – remain intact.

However, these new revisions significantly relax the burden and uncertainty that the quickie election rules’ fast-tracked timeline created for employers. For instance, under the Board’s new amendments, employers will now have five days to provide the expanded Excelsior data set, instead of two days as provided under the 2014 rules. Also, unlike under the Board’s 2014 rules, election certifications will now be stayed pending the outcome of a request for review—meaning that employers no longer will face the Hobson’s choice of either (a) potentially wasting resources bargaining with a union that may ultimately be decertified, or (b) refusing to bargain, and thereby risking an unfair labor practice should the certification be upheld.

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For questions on the Board’s new election procedures, please feel free to reach out to one of our experienced labor attorneys, who regularly assist employers with all types of union-related and NLRA compliance issues.