Bookmark and Share
 

E-Alerts

National Labor Relations Board Issues Broad Revisions to "Quickie Election" Rules

Citing the need to “create a fairer and more-efficient election process,” on December 18, 2019, the National Labor Relations Board (“NLRB” or “Board”) published a final rule (“Final Rule”) significantly amending its 2014 overhaul of the agency’s representation case procedures (a/k/a the “quickie election” rules). The Final Rule will go into effect on April 16, 2020.

Among the comprehensive changes include:

• 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 are now automatically 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 just-announced amendments as “common sense changes to ensure expeditious elections that are fair and efficient,” and that “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 the employer’s ability to engage in legal challenges prior to the 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.

2019 Amendments

The 2019 amendments 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:
 

Topic

2014 “Quickie Election” Rules

2019 Revisions

Timing of Pre-Election Hearings

8 calendar days from notice of hearing.**
** Notices of hearing typically are issued almost immediately following the petition for election.

14 business days from notice of the hearing.
Regional Directors will have discretion to postpone the opening of the hearing for good cause.

Deadline for Employer to Post/Distribute Notice of Petition for Election

2 business days after service of the notice of hearing.

5 business days after service of the notice of hearing.

Deadline for Filing Statement of Position (Non-petitioning Parties)

1 day before the opening of the pre-election hearing (i.e., 7 calendar days after service of the notice of hearing).

8 business days after service of the notice of hearing.
Regional Directors will have discretion to permit additional time for filing and service for good cause.

Requirement and Deadline for Responsive Statement of Position (Petitioning Parties)

N/A; petitioner responded orally to the Statement of Position at the start of the pre-election hearing.

Petitioning party now must file and serve a Statement of Position on the other parties, responding to the issues raised by any non-petitioning party in a Statement of Position.

Must be filed by noon 3 business days before the hearing is scheduled to open (i.e., 3 business days after the initial Statement(s) of Position is due).

When Eligibility and Unit Scope Questions Are Resolved

Ordinarily not litigated or resolved before an election is conducted.

Will now “normally” be litigated at the pre-election hearing, and resolved by the Regional Director before an election is directed. The Board stated its expectation that while Regional Directors “retain a certain degree of discretion” to defer individual inclusion and exclusion issues, they are encouraged to resolve as many as possible before an election is held, and “should not as a general rule defer issues that affect more than 10% of the unit.”

Ability to File Post-Hearing Briefs

Permitted only upon special permission of the Regional Director.

Now permitted as a matter of right, following both pre-election hearings and post-election hearings.
Must be filed within 5 business days of the close of the hearing, with an extension of up to 10 additional business days permitted for good cause.

Notice of Election

Direction of election “ordinarily” specified election details.

Final Rule emphasizes Regional Director’s discretion to issue a Notice of Election after issuing a direction of election.

Timing of Election

Elections scheduled for the “earliest date practicable.”

Elections still scheduled for the earliest day practicable, but, absent waiver by the parties, will normally not be scheduled before the 20th business day after the date of the direction of election.

Treatment of Ballots Pending Review of Election Decision

Ballots impounded only in limited circumstances.

If a pre-election request for review is filed within 10 days of the direction of election, and remains unresolved when the election is conducted, ballots whose validity might be affected by the Board’s ruling will be segregated, and all ballots will be impounded and remain unopened pending the ruling on the request for review of the direction of election. **
** Parties retain the right to file a request for review of a decision and direction of election more than 10 business days after that decision issues. However, ballots will not be automatically impounded pending the outcome of such requests.

Permissibility of Piecemeal Requests for Review

Prior rule lacked clarity on this topic.

Expressly prohibited. Under the new rules, a party may not request review of only part of a Regional Director’s action in one request for review and subsequently request review of another part of that same action.

Deadline to Furnish Voter (Excelsior) List

2 business days following the issuance of the direction of election.

5 business days following the issuance of the direction of election.

Identity of Election Observers

N/A.

An election observer should be a current member of the voting unit where possible. Otherwise, a current nonsupervisory employee should be selected.

Certification of Election Results When Request for Review Is Pending

Regional Directors were required to certify election results despite the pendency or possibility of a request for review.

A Regional Director will no longer certify the results of an election (a) if a request for review is pending or (b) before the deadline has passed for filing a request for review.

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 the 2019 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 new 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, the revisions significantly relax the burden and uncertainty that the quickie election rules’ fast-tracked timeline created for employers. For instance, under the Board’s 2019 amendments, employers will now have five (5) days to provide this expanded Excelsior data set, instead of two (2) 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.

* * *

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.

In addition, please join us on January 9, 2020 for a webinar on these and other labor law developments. Register now for the Labor Law Review and Preview: A Look Back at 2019 and What to Expect in 2020 webinar.