Developments in the NLRB’s Revised Representation Election Rule – Where Is It Now?

By Chad M. Horton - Shawe Rosenthal LLP

June 30, 2020

Back on June 1, 2020, the National Labor Relations Board implemented many of its proposed changes to the rule governing representation elections, in which employees vote on whether they wish to be represented by a union. These changes were unaffected by a federal judge’s eleventh-hour grant of injunctive relief that will hold up implementation of other changes included in the final rule.

Implemented Changes: Many of the election rule changes have gone into effect. The highlights include:

- Increasing Time Between Petition and Pre-Election Hearing: Pre-election hearings will now be scheduled 14 business days after a petition for representation is filed. Previously, the hearing was scheduled eight calendar days after the petition was filed. Additionally, Regional Directors will have greater discretion to postpone hearings. Under the previous rules, a moving party had to show “special circumstances” to receive an extension of up to two days, and “extraordinary circumstances” to receive a longer extension. The new rules do not require such showings.
- Statements of Position: The non-petitioning party – typically, an employer – must file its statement of position on the appropriate parameters of the proposed employee voting unit within eight business days after receiving the notice of election. Under the old rules, the filing deadline was seven calendar days. Additionally, the petitioning party – unions, typically – must file a statement of position responding to the issues raised in the non-petitioning party’s statement of position. This statement of position must be filed three business days before the hearing. Previously, the petitioning party was not required to file a statement of position. This change will alert non-petitioning parties to the petitioner’s legal position prior to the day of the pre-election hearing. Again, these deadlines may be extended at the discretion of the Regional Director.
- Post-Hearing Briefs: Parties now have a right to file post-hearing briefs. Previously, post-hearing briefs could be filed only if approved by the Regional Director.

Many of these changes will extend the time between the filing of a petition and an election, which benefits employers. Employers will now have more time to convey its position to employees prior to an election. Other implemented changes are set forth in General Counsel Peter Robb’s guidance memorandum.

Stalled Changes: On May 30, 2020, the U.S. District Court for the District of Columbia enjoined the implementation of several rule changes set forth in the final rule. The Court held that the enjoined changes were not lawfully promulgated because the NLRB did not follow the public notice-and-comment procedures required when federal agencies promulgate substantive rules (rather than procedural rules for which no such notice-and-comment procedures are required). The enjoined changes include:

- Expansion of pre-election litigation of voting eligibility issues;
- Extending the number of days from issuance of a Regional Director’s decision to an election;
- Extending the time for an employer to serve the Voter List on the petitioner;
- Clarifying the categories of employees who may serve as election observers;
- Timing of Regional Director certification of representatives.

The Board intends to appeal the district court’s decision to the D.C. Circuit. We will keep you updated regarding future developments.