This morning, the NLRB’s Democratic majority issued a new rule to “streamline” the union election process, limiting pre- and post-election litigation and accelerating the scheduling timeline for representation elections. The new rule will apply to any representation petitions filed after December 26, 2023.
The new rule contains 10 changes, summarized below, that aim to return representation election procedures to their pre-Trump status:
1. Scheduling of Pre-election Hearing – Pre-election hearings will generally be scheduled to open approximately 10 days sooner than under the 2019 rule.
2. Postponement of Pre-election Hearing – Regional directors will have more limited and defined discretion to postpone pre-election hearings than under the 2019 rule.
3. Due Date for Nonpetitioning Party’s Statement of Position – A nonpetitioning party’s written response to the petition will now be due approximately three days sooner than under the 2019 rule.
4. Postponement of the Statement of Position – Regional directors have less discretion to postpone the due date for filing of a Statement of Position than under the 2019 rule, making it more difficult for them to grant extensions.
5. Responsive Statement of Position – Petitioners will respond orally to the nonpetitioning party’s Statement of Position at the start of the pre-election hearing rather than, as under the 2019 rule, delaying the opening of the pre-election hearing to allow them to file and serve a responsive written Statement of Position.
6. Posting and Distribution of Notice of Petition for Election – An employer must post and distribute the Notice of Petition for Election to inform its employees of the election approximately three days sooner than under the 2019 rule.
7. Litigation of Eligibility and Inclusion Issues – Pre-election litigation is now limited to only the issues necessary to determine whether an election should be conducted. Any questions of individual employees’ inclusion in the bargaining unit will now be deferred until after the election is conducted.
8. Briefing Following Pre- and Post-election Hearings – Instead of written briefing, all parties will now be expected to present oral argument at the end of a pre- or post-election hearing. Previously, parties were directed to file written briefs at least five business days after the close of a hearing.
9. Specification of Election Details in Decision and Direction of Election; Notice of Election – Regional directors will now 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 simultaneously transmit the Notice of Election with the decision and direction of election.
10. Elimination of the 20-Business Day Waiting Period Between Issuance of the Decision and Direction of Election and the 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 imposed by the 2019 rule
These changes make it even more important for employers facing a representation petition to swiftly retain experienced counsel to guide them through the process. Missing a deadline, or failing to include an argument, can impact an employer’s options in contesting a union election. Sherman & Howard’s experienced labor relations counsel can direct employers through this process.