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NLRB Issues Final Rule Modifying Representation Case Procedures

On Dec. 13, 2019, the National Labor Relations Board (NLRB) announced a Final Rule which modifies representation case procedures. The amendments modify the procedures to permit parties additional time to comply with various pre-election requirements instituted in 2015. The Final Rule also clarifies and reinstates some procedures that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues prior to an election, and make several other changes the NLRB deems to be appropriate policy choices.

The Final Rule is scheduled to be published on Dec. 18, 2019. Dinsmore will provide an updated labor alert once the full text of the Final Rule has been analyzed. In the meantime, the following is a summary of significant changes contained in the unpublished version of the Final Rule, as set forth in its List of Amendments:

  • Timing of Pre-Election Hearing: The pre-election hearing will generally be scheduled to open 14 business days from notice of the hearing, and regional directors will have discretion to postpone the opening of the hearing for good cause. Under the prior rules, pre-election hearings were generally scheduled to open eight calendar days from the notice of hearing.

  • Posting of Notice of Petition for Election: The employer will now be required to post and distribute the Notice of Petition for Election within five business days after service of the notice of hearing. The prior rules required only two business days.

  • Timing of Filing and Service of Statement of Position for Non-Petitioning Parties: Non-petitioning parties are now required to file and serve the Statement of Position within eight business days after service of the notice of hearing, and regional directors will have the discretion to permit additional time for filing and service for good cause. The prior rules required the Statement of Position to be filed and served one day before the opening of the pre-election hearing (typically seven calendar days after service of the notice of hearing).

  • Filing and Service of Statement of Position for Petitioning Parties: The petitioner will also be required to file and serve a Statement of Position on the other parties responding to the issues raised by any non-petitioning party in a Statement of Position. The responsive Statement of Position will be due at noon three business days before the hearing is scheduled to open (which is also three business days after the initial Statement(s) of Position must be received). The prior rules required the petitioner to respond orally to the Statement(s) of Position at the start of the pre-election hearing.

  • Disputes Concerning Unit Scope and Voter Eligibility to be Litigated at Pre-Election Hearing: Although the primary purpose of the pre-election hearing is to determine whether there is a question of representation, disputes concerning unit scope and voter eligibility—including issues of supervisory status—will now normally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. The parties may, however, agree to permit disputed employees to vote subject to challenge, thereby deferring litigation concerning such disputes until after the election. The prior rules provided that disputes “concerning individuals’ eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.” 29 C.F.R. § 102.64(a).

  • Right to File Post-Hearing Brief with the Regional Director Following Pre-Election Hearings Restored: The right of parties to file a post-hearing brief with the regional director following pre-election hearings has been restored and extended to post-election hearings as well. Such briefs will be due within five business days of the close of the hearing, although hearing officers may grant an extension of up to 10 additional business days for good cause. Under the prior rule, such briefs were permitted only upon special permission of the regional director.

  • Regional Director’s Discretion to Issue a Notice of Election Subsequent to Issuing a Direction of Election Emphasized: The prior rules provided that regional directors “ordinarily will” specify election details in the direction of election.

  • Timing of Scheduling Election: The regional director will continue to schedule the election for the earliest date practicable, but—absent waiver by the parties—normally will not schedule an election before the 20th business day after the date of the direction of election. The prior rules simply provided that the regional director “shall schedule the election for the earliest date practicable.”

  • Request for Review of a Direction of Election: Where a request for review of a direction of election is filed within 10 business days of that direction, if the Board has not ruled on the request, or has granted it, before the conclusion of the election, ballots whose validity might be affected by the Board’s ruling on the request or decision on review will be segregated, and all ballots will be impounded and remain unopened pending such ruling or decision. A party may still file a request for review of a direction of election more than 10 business days after the direction, but the pendency of such a request for review will not require impoundment of the ballots. This represents a partial return to the Board’s procedures prior to the 2014 amendments, which removed the provision for automatic impoundment.

  • Formatting and Procedural Requirements for All Types of Requests for Reviews: All requests for review and oppositions thereto are now subject to the same formatting requirements. Oppositions are now explicitly permitted in response to requests for review filed pursuant to § 102.71. The practice of permitting replies to oppositions and briefs on review only upon special leave of the Board has been codified.

  • Requests for Partial Review of Regional Director’s Action Prohibited: A party may not request review of only part of a regional director’s action in one request for review and subsequently request review of another part of that same action. The prior rule was not clear whether parties were permitted to proceed in such a fashion.

  • Timing for Furnishing of Required Voter List: The employer now has five business days to furnish the required voter list following the issuance of the direction of election. Under the prior rule, the employer had only two business days to provide the list.

  • Selection of Election Observers: In selecting election observers, whenever possible, a party will select a current member of the voting unit. When no such individual is available, a party should select a current nonsupervisory employee. The prior rules simply provide that parties may be represented by observers.

  • Certification of Election Results: The regional director will no longer certify the results of an election if a request for review is pending or before the time has passed during which a request for review could be filed. Under the prior rules, regional directors were required to certify election results despite the pendency or possibility of a request for review. In cases in which a certification was issued, requests for review could be filed until 14 days after the issuance of the certification.

  • Changes in Terminology and Cross-References: The final rule also makes a number of incidental changes in terminology, and updates internal cross-references, consistent with earlier changes that were effective on March 6, 2017. See 82 FR 11748. In addition, for the sake of uniformity and transparency within the representation case procedures, the Board has converted all time periods in subpart D to business days, and it has also updated § 102.2(a) to define how business days are calculated (including clarification that only federal holidays are implicated in time-period calculations).

The foregoing amendments are subject to change once the Final Rule is published on Dec. 18, 2019. 

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume IX, Number 350


About this Author

Brian Moore, labor and employment litigator, Dinsmore Shohl law firm,
Of Counsel

Brian represents companies in labor, employment, and general litigation matters. His business-oriented approach enables him to guide clients through a myriad of challenges. Brian draws on his experience to help clients reach efficient resolutions -- or pursue litigation and trial -- as the situation warrants. Working with clients in the banking, insurance, retail, health care, energy, hospitality, and food and beverage industries, he has guided them through an array of issues, including discrimination, harassment, wage and hour, deliberate intent, unfair labor practice,...

 Raymond L. Harrell, Jr Associate Dinsmore Employment Labor Government Relations

Ray is a labor and employment attorney who focuses his practice on employment litigation. He regularly represents companies in the areas of discrimination, harassment, wrongful termination, wage and hour, deliberate intent, unemployment appeals, unfair labor practice, and general litigation. He also has experience counseling clients through pre-litigation employment issues, as well as drafting employee handbooks and policies, severance agreements, and other employment contracts. In addition to labor and employment law, Ray has defended companies and municipalities in cases involving industrial accidents, premises liability, civil rights and First Amendment claims, consumer credit and protection, real estate litigation, motor vehicle accidents, and other general litigation and disputes. 

His practice also focuses on government relations. As a registered lobbyist, he regularly advocates on behalf of various businesses and industry sectors before the West Virginia Legislature and state agencies. In this capacity, he is tasked with securing and maintaining access to government officials; analyzing the strategic and legal implications of legislation; drafting bills, amendments, position papers, and rulemaking comments; and monitoring and reporting on pending legislation for clients.