July 12, 2020

Volume X, Number 194

July 10, 2020

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July 09, 2020

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2020 Changes To NLRB Representation Election Rules—Heralding The End to ‘Ambush Elections’

The National Labor Relations Board recently announced significant changes to its rules regarding Representation Elections.  The new rules undo many of the controversial 2014 modifications made by the Obama Board, as discussed below.  These changes are not scheduled to become effective until April 16, 2020.  Until then, the Old Rules still apply.

1. The Pre-election Hearing

New Rule:  The pre-election hearing will be held within 14 business days from issuance of the Notice of Hearing (NOH).

Old Rule:  The pre-election hearing will be held within 8 business days from the issuance of the NOH.

2. Notice of Petition for Election

New Rule:  The employer must post and distribute the Notice of Petition for Election (NAPE) within 5 business days after service of the NOH.

Old Rule:  The employer must post and distribute the NAPE within 2 business days after service of the NOH.

3.  Service of Statements of Position

New Rule: The employer (and any other non-petitioner parties) must serve the Statement of Position SOP) on all other parties within 8 business days after service of the NOH.

In addition, petitioners (usually unions) will be required to serve an SOP on all other parties by noon at least 3 business days before the hearing is scheduled to start. Timely amendments to the petitioner’s statement may be made if good cause is demonstrated.

Old Rule:  The employer (and any other non-petitioner parties) must serve the SOP at least 1 business day before the Pre-election Hearing, which typically was 7 business days after service of the NOH. The petitioner is required to respond to the SOP(s) at the opening of the hearing.

4.  Other Petition Issues (Unit Scope, Voter Eligibility, Supervisory Status)

New Rule:  These issues will normally be litigated at the pre-election hearing and be resolved by the Regional Director prior to an election being directed.  The parties may agree to defer litigating these issues until after the election.

Old Rule:  These issues, which can be critically important in the Representation Election process, are not required to be either litigated or resolved before an election is conducted.

5.  Post-hearing Briefs

New Rule:  All parties will have the right to file a post-hearing brief after a pre-election hearing and, also post-election briefs may be filed.  Such briefs will be due within 5 business days of the close of the hearing, and the hearing officer may grant an extension of up to 10 additional business days, for good cause.

Old Rule:  Post-hearing briefs are permitted only upon special permission from the Regional Director.

6.  Notice of Election

New Rule:  The rule emphasize that the Regional Director has discretion to issue a Notice of Election after issuing the direction of an election. 

Old Rule:  The prior rule provides that regional directors “ordinarily will” specify election details in the direction of election. 

The Board believes this change will eliminate confusion caused by the prior rules, which led to unnecessary litigation.

7.  Scheduling the Election

New Rule:  Regional Directors will continue to schedule the election for the earliest date practicable, but normally elections will not be scheduled before the 20th business day after the date of the direction of election, absent a waiver of the time limit by the parties.  This timeline will enable the Board to rule on certain types of requests for review prior to the holding of an election and reduce the number of cases in which there are unresolved issues when the election is held.

Old Rule:  The Regional Director “shall schedule the election for the earliest date practicable,” with no minimum time between when the direction of the election issued and when the election is held.

8.  Requests for Review/Impounding Ballots

New Rule:  Where a request for review of a direction of election is filed within 10 business days after the DOE, if the Board has either not ruled on the request or has granted it, and the election is held, ballots that could be affected by the request for review will be segregated and all ballots will be impounded and remain unopened pending a ruling or decision by the Board.  A party may also file a RFR more than 10 days after the direction of election, but the ballots will not be impounded.

Old Rule:  Impoundment of ballots is not automatic when a request for review was filed.

9. Format and Procedural Requirements for all Requests for Review Made Consistent.

New Rule:  The same formatting rules apply to all requests for review as well as opposition to a request for review.  Also, an opposition to a request for review is explicitly permitted.

Old Rule:  Formatting is not consistent and oppositions to requests for review are not universally allowed.

10.  Election Observers

New Rule: Whenever possible, observers will be a current member of the voting unit.  When no such individual is available, the party should select a current nonsupervisory employee.

Old Rule:  The rule provides only that parties be represented by observers, without guidance regarding who is, and who is not, an acceptable observer.

11.  Certification of Election Results During the Time Period for Request for Review

New Rule:  The Regional Director will no longer certify election results if:  1) a request for review is pending, or 2) the time has not passed for a request for review to be filed.

Old Rule:  Regional Directors are required to certify election results despite a pending or possible request for review.  In fact, in cases where a certification issued, requests for review could be filed up until 14 days after the issuance of certification.

The new rules will improve the representation election process measurably, even if they increase the time period between the filing of a petition for an election and when the election is held.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume IX, Number 353

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About this Author

Mark D. Nelson, Polsinelli PC, Legal Strategies Attorney, Union Avoidance lawyer
Shareholder

Mark Nelson thrives on crafting legal strategies that are grounded in each client's business objectives. In his more than 30-year career, he has represented management in labor relations and employment discrimination issues and has extensive experience representing employers in a wide variety of labor matters including:

  • Union avoidance

  • Union organizing campaigns

  • Contract negotiations

  • Labor disputes

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