NLRB Delivers A “Holiday Gift” To Employers: New Union Election Timelines

By Chad M. Horton & Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

December 13, 2019

On December 13, 2019, the National Labor Relations Board (NLRB) issued a final rule revising the Obama-era union election procedures (known as “R-Case” rules). The revision to the procedures will become effective 120 days from its publication in the Federal Register next week.

Background

In 2014, the Obama Board implemented a controversial overhaul of the rules governing representation cases (known as “R Cases”). Among the more significant changes, the 2014 rules substantially reduced the timeline between a union’s representation petition and the date on which an election was held. Those rules also provided for strict timelines in responding to union petitions and often deferred important bargaining unit composition determinations to post-election proceedings.

The Revised Rules

In issuing revised R-Case rules, the Board identified some of the concerns that it was addressing as follows:

[V]arious of the Board’s stakeholders have expressed concern that the current default timeframe from the filing of a petition to the pre-election hearing is too short a time in which to meet the various new obligations triggered by the filing of a petition while also adequately preparing for the hearing; that the current procedures encouragement of deferral of disputes concerning unit scope and voter eligibility results in less fair and informed votes; and that parties may only submit post-hearing briefs when the regional director permits them to do so.

Today’s rule relaxes several timelines put in place by the 2014 rules and places additional obligations on petitioning parties (unions, typically) including:

1.  Pre-election hearings will be scheduled 14 business days from the date of the petition. Currently, Regional offices schedule such hearings for eight calendar days after the petition is filed
2.  Regional Directors may postpone hearings upon a showing of good cause. Currently, Regional Directors are permitted to grant postponements only upon a showing of “special circumstances” and may not exceed two days absent a showing of “extraordinary circumstances.”
3.  Employers will have eight business days to file the Statement of Position. Currently, an employer must file its Statement of Position at noon on the day preceding the election – typically, seven calendar days after the petition is filed.
4.  Petitioning parties (typically unions) will be required to respond to the Statement of Position within three business days. There is no such requirement on unions under the 2014 rules.
5.  Employers may now litigate bargaining unit composition issues prior to the election, just as they had been able to do before the 2014 rule changes, which required such issues to be deferred to post-election hearings in the normal course.
6.  Parties again have the right to file post-hearing briefs following pre-election hearings. Under the 2014 rules, post-hearing briefs were permitted only at the discretion of Regional Directors.
7.  Absent agreement by the parties, a Regional Director may not direct an election before the 20th business day following a direction of election.

Practical Impact

The NLRB’s revised rules will restore important employer rights that the 2014 rules curtailed.  Employers will now have additional time to respond to a union petition and litigate important bargaining unit issues prior to an election.  In particular, an employer will now have nearly three (3) weeks before the hearing date to prepare its strategy and evidence for the hearing.  An employer will again be able to litigate the appropriate scope of the unit – which groups of employees are included, and which are not – and voter eligibility prior to election.  The scope of the bargaining unit and who is permitted to vote has an obvious impact on the outcome of an election, and thus is appropriately addressed pre- and not post-election.

In addition, the rule will substantially extend the time between the date a petition is filed and the date of the election, which will afford employers more time to communicate with employees about what union representation can and cannot accomplish as well as the benefits of remaining union-free.  (Unions, of course, will have conveyed their message to employees prior to the filing of the election petition, and thus essentially may communicate without any time limits.) Indeed, under the new rule, if a case proceeds to a pre-election hearing, is briefed, and an election is directed by the Regional Director, an employer will have nearly two calendar months to campaign with its employees prior to the election (as compared with the current 3-4 weeks).

This revision to the R-Case rules comes as a welcome “holiday gift” to employers that were forced to hurriedly respond to union petitions, and often rushed to elections against unions that had spent months organizing employees.