NLRB Issues Rule Repealing Key Components of Quickie Election Rules

By Adam Santucci on December 23, 2019

POSTED IN UNIONS

If you follow our blog, you know that the National Labor Relations Board’s election rules have been a hot topic over the past several years.  The Board’s election rules are critical, because time can often make a difference in whether a union election is won or lost.

In 2011, the Board started the process to change the rules applicable to union elections, known as representation cases.  In essence, the proposed rule changes would speed up the election process.  These changes were almost universally viewed as being detrimental to employers and favorable to unions.  The time between the date an election petition is filed (in the vast majority of cases it is the union filing the petition) and the date of the election is critical for employers, because it is often the only time the employer will have to express its views regarding unionization.  The new rules, known as the ambush election or quickie election rules, were finalized in 2014 and became effective in April of 2015.

We have dealt with several representation cases under the quickie election rules, and we can say without a doubt that things move too fast, leaving employers at an unfair disadvantage.

Enter the Trump Board.  In December of 2017, the Board issued a Request for Information, seeking public input on the quickie election rules, and the Board’s rules in representation cases generally.  Although we did not hear much about the rules through 2018 and most of 2019, most employers were hopeful that the Board would repeal or roll back the Quickie Election Rules.  On December 18, 2019, the Board published a Notice of Final Rulemaking in the federal registry, which does exactly that.  The notice announced significant changes to the representation case procedures, which will take effect in 120 days.

For example, the pre-election conference, previously required to be scheduled within eight days of the service of the petition, will now be scheduled 14 days from service.  In addition, the deadline for posting the Notice of the Petition was extended from two business days to five business days.  Employers will also have eight business days to file a position statement in response to a union petition.  In addition, the new rules extend the time to provide the required voter eligibility list, or Excelsior list, from two days after the direction of election to five business days.

The new rules will also change the process for certain challenges, including challenges to eligible voters.  Under the quickie rules, these challenges were deferred until after the election.  Now, the parties can litigate these issues before the election or agree to defer the matter until after the election.  In addition, if there is a pre-election hearing, the parties will be permitted to file post-hearing briefs with the regional director within five business days of the hearing.  Under the quickie rules, the parties could only file briefs with special permission of the regional director.

In our opinion, all of these changes will benefit employers in the vast majority of cases.  The changes should also make the process more efficient, because employers will have more time to evaluate and attempt to resolve issues before the election.  Time will tell if there is an increase in union election petitions in the short term, seeking to take advantage of the quickie election rules.

If you have questions, concerns, or would like further discuss these upcoming changes to the Representation Election Rules, please contact a member of the McNees Labor and Employment Group.