The NLRB Implements New Representation Election Rules

The NLRB is the independent federal agency responsible for conducting independent representation elections on behalf of private-sector employees who seek to unionize. Although the NLRB initially announced its intent to revise the representation election rules on December 13, 2019, its plan to implement the revised rules and regulations stalled after the novel coronavirus pandemic derailed the Agency’s original plan to roll out the revised rules in April 2020. And, in the midst of the pandemic, the AFL-CIO also filed a federal lawsuit against the NLRB seeking to enjoin the implementation of the revised representation election rules in their entirety.

By order dated May 30, 2020, a federal judge ruled in the AFL-CIO matter, blocking certain representation election rules from implementation because they were substantive rather than procedural changes to the NLRB’s existing rules which had not been properly presented to the public for notice and comment before the rules were scheduled to take effect. In the order, the judge noted that a memorandum opinion to the May 30 order would be forthcoming.

Although the judge’s memorandum opinion remains pending, the NLRB announced on June 1, 2020, that it would immediately implement the procedural rules which were not disturbed by the judge’s order, and planned to appeal those substantive rules enjoined by the judge’s May 30th order. It also issued General Counsel Memorandum 20-07 outlining the rules currently in effect.

As a whole, the modifications implemented on June 1 will extend the timeline for certain procedural deadlines and ultimately increase the number of days between the filing of a petition to when voting occurs. The modifications will also provide employers with more opportunities to challenge the validity of a petition both before and after an election is held.

These changes have been well received among employer stakeholders who initially raised concerns that the NLRB’s “quickie election” rule-making efforts in 2014 under the Obama NLRB unnecessarily truncated the timeline between the filing of a petition and when voting occurs.

Union and other stakeholders continue to maintain that the NLRB’s modifications to its representation election rules are incongruent with the Act’s mission to assist employees in choosing a potential collective bargaining representative by having speedy and impartial elections.

The following provisions are effective immediately:

• Scheduling the hearing at least 14 days from issuance of the notice of hearing;
• Posting the notice of election within 5 days instead of 2 days;
• Changes in timeline for serving the non-petitioning party’s statement of position;
• Requiring petitioner to serve a responsive statement of position;
• Reinstatement of post-hearing briefs;
• Reinstating Regional Director discretion on the timing of a notice of election after the direction of an election;
• Ballot impoundment procedures when a request for review is pending;
• Prohibition on bifurcated requests for review;
• Certain changes in formatting for pleadings and other documents; and
• Terminology changes and defining days as “business” days.

The following provisions are enjoined from implementation based on the judge’s May 30th order, and will likely be the subject of an NLRB appeal:

• Reinstitution of pre-election hearings for litigating eligibility issues;
• Timing of the date of election;
• Voter list timing;
• Election observer eligibility; and
• Timing of Regional Director certification of representatives.

Employers seeking assistance with responding to organizing campaigns or navigating the NLRB’s new representation election rules should not hesitate to contact a member of the Arent Fox Labor & Employment group.