New NLRB Representation Election Rules and Procedures

By Giovanni DeGregorio - McMahon Berger P.C.

December 15, 2023

On August 24, 2023, the National Labor Relations Board (“NLRB”) adopted the “2023 Election Rule,” which, while designed to reduce the time from the filing of a representation petition to a union election, severely impacts an employer’s ability to prepare for a union election once a demand for voluntary recognition has been made. The 2023 Election rule was promulgated along with the NLRB’s decision in Cemex Const. Materials Pac., LLC, N.L.R.B., Case 28-CA-230115 08/25/23, which provides unions new avenues to recognition while simultaneously placing increased scrutiny on employer conduct during election campaigns. More information on the Cemex decision can be found here. The 2023 Election Rule will take effect on December 26, 2023.

Prior to the 2023 changes to the union election process, the NLRB handled union elections in accordance with the 2019 Election Rule. The 2023 Election Rule restores provisions set forth in the 2014 Election Rule. Below is a summary of the new 2023 Election Rule and its differences with the 2019 Election Rule:
 
Pre-Election Hearings

•    102.63(a)(1): pre-election hearings generally will be scheduled to open 8 calendar days after petition filing; approximately 10 calendar days sooner than under the 2019 Election Rule.

•    102.63(a)(1): Regional Directors may postpone a pre-election hearing for up to 2 business days upon request of a party showing special circumstances and for more than 2 business days upon request of a party showing extraordinary circumstances.

•    102.63(b): a non-petitioning party’s (typically the employer) written response to the petition generally will be due 7 calendar days after service of the Notice of Hearing; 3 calendar days sooner than under the 2019 Election Rule.

•    102.66(b): Regional Directors may postpone the due date for the filing of a Statement of Position for up to 2 business days upon request of a party showing special circumstances and for more than 2 business days upon request of a party showing extraordinary circumstances.

•    102.66(b): Petitioners will be allowed to respond orally to the non-petitioning party’s Statement of Position at the start of the pre-election hearing without having to file and serve a written responsive Statement of Position.
 
Dissemination of Election Information

•    Employers must post and distribute the Notice of Petition for Election within two business days after service of the notice of hearing, rather than five business days under the 2019 Election Rule.
 
Hearing Process

•    Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. Accordingly, a Regional Director ordinarily will defer litigation of eligibility and inclusion issues to the post-election stage if those issues do not have to be resolved to determine whether an election should be held.

•    All parties will be provided with an opportunity for oral argument before the close of the hearing. Written briefs will only be allowed with the permission of the Regional Director (pre-election hearing) or the Hearing Officer (post-election hearing).

•    102.66(h) provides that briefs after the close of pre-election hearings shall be filed only upon special permission of the Regional Director and within the time and addressing the subjects permitted by the Regional Director. Under the 2019 Election Rule, parties were entitled to file pre and post-hearing briefs with the regional director following pre-election hearings and with the hearing officer following post-election hearings up to 5-15 business days following the close of the hearing.

•    102.69(c)(1)(iii) provides that briefs after the close of post-election hearings shall be filed only upon special permission of the Hearing Officer and within the time and addressing the subjects permitted by the Hearing Officer.
 
Elections

•    Regional Directors ordinarily will specify the election details (the type, date(s), time(s), and location(s) of the election and the eligibility period) in the decision and direction of election and will ordinarily simultaneously transmit the Notice of Election with the decision and direction of election.

•    Regional Directors will schedule elections for “the earliest date practicable” after issuance of a decision and direction of election, rather than observing the 20-business-day waiting period under the 2019 Election Rule.

For more information on the 2023 NLRB Election Rule, please consult the General Counsel’s Guidance Memorandum GC 24-02, which is available for download here.
 
Given these shortened time frames, it is imperative for employers to be prepared in the event a representation petition is filed with the NLRB. Having a plan in place in advance of a petition filing will put companies in a better position to educate their employees about the election process and whether having a union is in their best interest.

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