The National Labor Relations Board (the “Board” or “NLRB”) issued a final rule on August 24, 2023 that will drastically reduce the time between when a petition is filed – typically, by a union – and an election. This final rule is yet another instance of the Biden Board furthering union activities by changing existing case law or procedures to make it easier for unions to organize employees. The final rule goes into effect on December 26, 2023.
In 2014, during the Obama administration, the Board issued a final rule amending long established representation case procedures. The 2014 rule was dubbed the “quickie election” rules because the final rule accelerated the pre-election process, including decreasing the amount of time between the filing of a petition and the scheduling of a pre-election hearing, and generally restricting the employer’s ability to lodge challenges to the petitioned-for unit at the pre-election stage.
In 2019, the Trump Board undid the 2014 “quickie election” rules. The 2019 final rule extended the period of time for the responding party (in most cases, the employer) to file a pre-election statement of position, required the petitioning party (in most cases, the union) to file a responsive statement of position prior to a hearing, and increased the number of days between the date of petition and the scheduled hearing date. The 2019 rule also afforded Regional Directors greater latitude to approve reasonable requests for extensions to file statements of position and postpone hearings. Lastly, the 2019 rule permitted parties the right to file post-hearing briefs with Regional Directors.
Quickie Elections Are Back
The 2023 final rule will, like its 2014 predecessor, result in elections much closer in time to the filing of a petition, severely limiting the responding party’s – again, this will be the employer in most cases – ability to respond to the petition.
- Pre-Election Hearings Will Occur Sooner
Pre-election hearings will now be scheduled eight (8) calendar days after the filing of a petition. Under the 2019 rule, pre-election hearings were scheduled 14 business days – nearly three calendar weeks – after the petition. A responding party will now be required to hurriedly assess the appropriateness of a petitioned-for unit and certain eligibility issues, while simultaneously addressing the petition with employees. Further, the responding party will have less time to prepare witnesses and build its case prior to the expedited hearing.
- Quicker Notice Posting Deadlines
The employer will now have two business days to post the Notice of Petition under the final rule. Currently, the employer has five business days. Failure to post this notice can result in an employer’s election victory being tossed aside and a re-run election ordered.
- More Rigorous Standard for Obtaining Postponements
Regional Directors’ discretion to postpone the pre-election hearing and deadlines to file statements of position is curtailed by this final rule. Currently, Regional Directors may issue such postponements upon a showing of “good cause.” Regional Directors typically use their discretion, in consideration of party availability, to determine the length of such postponements. Under the final rule, however, Regional Directors may only postpone these dates for up to two business days on a showing of “special circumstances.” Extensions of more than two business days will require a showing of “extraordinary circumstances.”
- Reduced Ability to Lodge Eligibility Challenges Prior to Election
Employers and unions often disagree who is and is not eligible to vote in an election. For example, parties often dispute whether certain individuals are not supervisors under the National Labor Relations Act (NLRA). Currently, such issues can be litigated at the pre-election stage. Following a Regional Director’s decision, the parties will better understand who is eligible to vote and who an employer may and may not enlist to campaign on its behalf. But under the current rule, a party is limited to presenting evidence concerning only a question of representation. In most cases, this will be limited to whether the petitioned-for unit constitutes an appropriate unit. Thus, certain eligibility issues will be deferred to post-election procedures, leaving employers (and unions) in the dark concerning who is ultimately eligible to vote in the election – and, in the case of employers, who the employer may utilize to campaign on its behalf.
- Responding Parties (often, unions) Will Not Be Required to File a Responsive Statement of Position Prior to a Pre-Election Hearing
The final rule also changes the timeline for filing Statements of Position. Under the final rule, employers must file a statement of position no later than 12 noon on the business day prior to the hearing, which will often be the seventh calendar day following the petition. Currently, non-petitioning parties have eight business days to file a statement of position. To make matters worse, petitioning parties will not be required to file a responsive statement of position prior to the hearing; rather, petitioning parties need only state its response to the statement of position orally on the record at the hearing. This will impact non-petitioning parties – again, employers on most occasions – ability to prepare for a hearing.
- Parties No Longer Have Right to File Post-Hearing Briefs
Under the current rule, all parties to the hearing have the right to file a post-hearing brief. Under this final rule, though, a Regional Director may permit briefs at their discretion.
This final rule will substantially decrease the amount of time an employer has to prepare its response to a union representation petition. There are several actions employers can and should take while it is not faced with pressure of these expected timelines:
- Assess who in your operation is likely to be considered a supervisor under Section 2(11) of the NLRA. While you can rest assured the plant manager will be considered a supervisor, the analysis of other classifications may not be so clearcut. If you are unsure whether someone in your operation may be considered a supervisor, you should consult with experienced labor counsel. There is a better chance than not that you will not have the benefit of a Regional Director’s decision on the subject prior to an election.
- Formulate an action plan that will be activated if a petition is filed. Employers blindsided by a representation petition will be operating on parallel tracks to address the subject of unionization with employees, while also preparing for a hearing that will be scheduled just more than a week after the petition is filed. A plan delegating defined roles will aid the employer’s response to the petition and preparations for a hearing.
- Employers should strongly consider supervisory and managerial training concerning how to lawfully respond to a union organizing campaign. (This is even more important now following the Board’s Cemex decision, which provides for a bargaining order if an employer commits an unfair labor practice following a demand for recognition or the filing of a petition.) If supervisors and managers are well-versed in these requirements, employers can dedicate more time to preparing for an expedited response to a union petition.
The rule will unquestionably make it easier for unions to organize. The final rule will reduce the amount of time between a union petition and an election in most cases, and thereby reduce the amount of time an employer will have to lawfully campaign against the union. Employers would be well served to prepare for a petition, and the deadlines that come with it, before a petition is ever filed.