October 16, 2021

Volume XI, Number 289

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NLRB Election Rule Changes Aim to Restore Level Playing Field

In a move certain to bring employers some holiday cheer, the NLRB has announced changes to its rules governing union elections that will relax some of the timeframes the Obama-era board had tightened in 2014 and allow parties to address unit scope and voter eligibility issues prior to an election. Designed specifically to roll back some of the 2014 amendments, often referred to as the “ambush election rules,” the NLRB declared that the changes were needed to “better balance the interest in expeditious processing of questions of representation with the efficient, fair and accurate resolution of [such] questions.” The new rules are set to go into effect in mid-April of 2020.

The following is a summary of the major changes:

  • The pre-election hearing now will generally take place 14 business days from the notice of hearing. The current rule calls for the hearing to take place in eight calendar days.

  • The employer’s time for posting and distributing the Notice of Election is extended from two business days to five business days after service of the notice of hearing.

  • The time for filing a statement of position in response to the petition is extended from one day prior to the hearing date (which, typically, means seven calendar days) to eight business days after service of the notice of hearing.

  • The petitioner must file a written response to the issues raised in the statement of position three business days prior to the hearing date. Under the current rule, the petitioner needs only respond orally at the hearing to the issues raised in the statement of position.

  • Perhaps most significantly, the parties regain the right to litigate issues of unit scope and voter eligibility (such as supervisory status) at the pre-election hearing and receive a ruling on those issues prior to the direction of election.

  • Parties regain the right to file a post-hearing brief within five business days after the close of the hearing. Currently, briefs are allowed upon special permission of the Regional Director only.

  • The earliest date for an election to be scheduled is 20 business days after the direction of election absent agreement of the parties to a shorter period. The 2014 amendments had eliminated the minimum time period between direction of election and the election.

  • If either party files a request to review the direction of election within 10 business days, and the request has not been ruled upon or granted prior to the election date, all ballots whose validity might be impacted by the request will automatically be impounded.

  • The time for the employer to furnish the voter list is increased from two business days to five business days.

  • Election observers must be members of the voting unit or a current, nonsupervisory employee of the employer. This change is designed to clarify the Board’s intent, and to overrule any contrary precedent, that non-employee observers should not be permitted.

The rule changes will provide employers with much needed time to properly analyze and address the myriad and often complex issues raised by a representation petition while, at the same time, fulfilling the various pre-election requirements imposed by the rules. Additionally, the rule changes will enable all parties to more clearly and accurately identify which employees should be included within the voting unit and to provide such employees with an adequate opportunity to be informed regarding the advantages and disadvantages of union representation.

© 2021 Vedder PriceNational Law Review, Volume IX, Number 350
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About this Author

Eugene Boyle Employment Attorney Vedder Price
Shareholder

Eugene A. Boyle is a Shareholder at Vedder Price and a member of the firm’s Labor & Employment practice area in Chicago.

Mr. Boyle counsels and defends companies nationally in all facets of labor and employment law, regularly advising employers across many industries on a broad spectrum of employment law issues. Mr. Boyle has significant experience in the areas of traditional labor law and labor-management relations. He has negotiated many collective bargaining agreements and regularly provides advice with respect to contract administration and grievance-handling. He has...

312-609-7692
Kenneth F. Sparks, Vedder Price Law Firm, Labor employment attorney
Shareholder

Kenneth F. Sparks is a shareholder with over 20 years of experience in labor and employment matters.  He represents and advises private and public employers in complicated labor law and litigation matters nationwide. Among his areas of concentration are union organizing and collective bargaining, including development and implementation of integrated responses to all of the litigation, publicity, and strike matters that can and often do become a part of organizing and collective bargaining.  He has negotiated numerous collective bargaining agreements, tried cases before the National Labor...

312-609-7787
Mark L. Stolzenburg, Vedder Price Law Firm, Labor Employment Attorney
Shareholder

The primary focus of Mr. Stolzenburg's practice is labor-management relations.

He negotiates collective bargaining agreements, represents employers in labor arbitrations, counsels employers on day-to-day issues regarding the collective bargaining relationship (such as strikes, grievances and interpreting collective bargaining agreements), assists employers with union organizing and decertification campaigns, represents employers before the National Labor Relations Board, handles labor-related litigation in federal and state courts and represents...

312-609-7512
Candice T. Zee, Vedder Price, Labor and employment lawyer
Shareholder

Candice T. Zee is a Shareholder at Vedder Price and a member of the Labor & Employment practice area in the firm’s Los Angeles office.

Ms. Zee focuses her practice on traditional labor issues, including unfair labor practice charges, interpretation of collective bargaining agreements, grievances, arbitrations and National Labor Relations Board proceedings. She has handled several union grievances, arbitrations and representation cases at all stages and has extensive experience managing and overseeing union election campaigns. 

...
424 204 7771
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