On March 24, 2020, the National Labor Relations Board (NLRB) decided to postpone the effective date of its final rule modifying the Agency’s regulation on union representative-case procedures, from April 16, 2020 to May 31, 2020, in order to facilitate the resolution of legal challenges.
The NLRB’s final rule, which rolled back some of the burdensome requirements of the “quickie election” rule issued under the Obama Administration, was published on December 13, 2019. Many employers argued that the original quickie election rule stripped them of the proper due process that they should have been afforded when served with a union representation petition. Further, employers complained that the rule inherently shortened the election campaign timeframe and impeded those employers that had hoped to give employees guidance about union representation, leaving such employees with substantially less time to consider important facts necessary for making a thoughtful choice during a union election.
The new rule makes several important changes that will alleviate some of these employer concerns. A few notable changes in the final rule include:
- Petitioned employers will now have five business days, rather than two calendar days, to post and distribute the mandatory Notice of Petition for Election.
- The pre-election hearing will be scheduled 14 business days from the service of the notice of hearing – a significant increase from the current requirement of eight calendar days.
- Employers will now have eight business days to file and serve their Statements of Position, up from the current seven calendar days.
- The parties’ right to file post-hearing briefs has been reinstated.
- Regional Directors will generally be precluded from scheduling an election less than 20 business days from the date the NLRB directs an election, absent the mutual consent of the parties.
- Regional Directors will also have greater ability to extend deadlines for “good cause” showings.
- Employers will have five business days to file the mandatory Voter List after approval of the stipulated election agreement or the Decision and Direction of Election, up from the current standard of two business days.
Overall, the new rule will allow the NLRB to resolve questions of representation, voter eligibility, and unit scope before an election is scheduled, rather than deferring them until after the election as they were under the quickie election rule. As noted above, the final rule will not take effect until May 31, 2020 due to the recent postponement. Accordingly, employers should be wary of a potential increase in organizing efforts as labor unions attempt to file petitions before the rule becomes effective.