The NLRB Issues Final Rule on Representation Election Procedures, Restoring Obama-era “Quickie Election” Rules

Donovan Estrada, Associate

On December 26, 2023, the National Labor Relations Board's (“NLRB”) Final Rule on Representation Case Procedures (“Final Rule”) will take effect and restore changes to the union election process implemented during the Obama administration which significantly sped up the representation election process, and which were rolled back by the NLRB during the Trump administration.[1] The Final Rule reflects the current administration’s pro-union policies, as faster elections are generally favorable to labor organizations.

Key Changes from the 2019 Rule

The Final Rule brings several changes to the NLRB's representation case procedures, which govern the union election process, largely departing from the 2019 rules and returning to rules adopted in 2014. For example, under the Final Rule, pre-election hearings to resolve key issues before a union election takes place will generally be scheduled to occur eight calendar days from service of the Notice of Hearing, as opposed to fourteen days under the 2019 rule. The Final Rule also curtails the discretion of regional directors to postpone these hearings by requiring a showing of “special circumstances” for a delay of up to two days and a showing of “extraordinary circumstances” for a delay of longer than two days, demonstrating the NLRB’s hostility toward these extensions.

Additionally, non-petitioning parties (typically employers) will need to submit any Statements of Position prior to a pre-election hearing approximately three days sooner than required under the 2019 rules, requiring non-petitioners to formulate their position much more quickly. Similarly, under the 2019 rules, a petitioner was required to file and serve a responsive written Statement of Position to the non-petitioning party’s Statement of Position three business days prior to the pre-election hearing. However, the Final Rule mandates that petitioners provide oral responses to these Statements of Position at the commencement of the pre-election hearing instead, underscoring the NLRB’s preference for a quicker election process.

Further, under the 2019 rule, an employer had five business days to post the Notice of Petition for Election, which is an announcement informing employees of the pending union election and relevant details, in conspicuous places in the workplace and to electronically distribute it to employees if the employer customarily communicates with its employees electronically. Under the Final Rule, an employer has two business days to complete the requisite posting and electronic distribution.

As for the scope of issues litigated in pre-election hearings, under the 2019 rule, if there were disputes regarding certain employees’ eligibility to vote (such as whether an employee is properly classified as a management employee) or the scope of the proposed bargaining unit, for example, such issues would need to be litigated and resolved before an election could take place. Under the Final Rule, the focus will be narrowed to determining whether a question of representation exists such that an election may be held (e.g., whether the required showing of interest from employees has been satisfied, any jurisdictional questions, etc.). The NLRB has justified narrowing the scope of pre-election hearings because issues of voter eligibility or inclusion in a particular bargaining unit are often mooted by election results or can otherwise be remedied after an election takes place.  

While all parties will be provided with an opportunity for oral argument before the close of pre-election hearings, written briefs will only be admitted if deemed necessary by the regional director for pre-election hearings or by the hearing officer for post-election hearings (whereas under the 2019 rule, parties were entitled to file briefs up to five business days following the close of a pre- or post-election hearing). The NLRB contends restoring only permissive post-hearing briefing permits regional directors and hearing officers adequate flexibility to request briefing in the rare complex case where it is deemed necessary.

Last, per the Final Rule, Regional Directors must again schedule elections for “the earliest date practicable” after issuance of a decision and direction of election. While the 2019 rule contained the same language, it also imposed a twenty-business day waiting period between the decision and direction of election and the actual election.  Again, this change under the Final Rule strongly favors union organizers, since employers have a much shorter time frame to campaign against unionization prior to an election. 

Employer Considerations

Employers should prepare for these procedural adjustments by planning for more rapid timelines in the event employees file a representation petition with the NLRB.  With the reduced timeframes, swift decision-making and preparedness for any necessary pre-election hearings will be critical.

Campbell Litigation is available to assist employers with questions about the Final Rule, and the representation election process generally, in anticipation of the Final Rule's effective date in December 2023.

[1] https://www.federalregister.gov/documents/2023/08/25/2023-18129/representation-case-procedures