Seyfarth Synopsis: On August 24, 2023, the National Labor Relations Board (NLRB) issued a Final Rule dramatically altering union election processes. The Final Rule overturns many Trump-era regulations, thereby perpetuating an evolving and unstable labor environment. The Final Rule aims for quicker resolutions of representation cases, reduces the issues that can be litigated in a pre-election hearing, reduces the amount of time an employer can prepare for a pre-election hearing, expedites when an employer must file a statement of position, eliminates the requirement for the petitioning party to file a responsive statement of position prior to the start of the pre-election hearing, and reinstates other Obama-era Board provisions that favor "ambush" or "quickie" elections. These changes bear significant legal implications that are likely to lead to a surge in union activity in a year that has already seen over 58,000 workers unionize through June, an increase of 15,000 workers during the same time period in 2022. The Final Rule is scheduled to take effect December 26, 2023.
Historical Background and the Unwinding of the 2019 Rule
The Final Rule's significance is heightened when understood in the context of the ongoing struggle between labor and management, characterized by fluctuating regulations and court rulings.
In 1961, the Board initially established a series of rules that outlined the procedures and criteria to be followed when addressing petitions that challenge representation elections. This process has since become known within the Board as "representation cases."
Against that historical backdrop, the 2014 Rule made 25 changes to the existing rules and were implemented under a Democratic NLRB majority during the Obama administration. The 2014 Rule sought to make elections happen faster by nixing the preexisting 25-day waiting period, among other changes. This rule was swiftly dubbed the "ambush" or "quickie" election rule.
The 2019 Rule under President Trump, issued without public comment, relaxed several deadlines and expanded pre-election briefing. By and large, the Trump-era rules lengthened the election timeline, imposed provisions such as setting a minimum lag time between election approvals and votes, and promoted such niceties as permitting parties to brief the case and requiring both parties to formally state their positions in writing before a pre-election hearing. However, the AFL-CIO challenged this Rule, leading to a D.C. Circuit opinion that modified several of the regulations. In a mixed opinion, the D.C. Circuit Court's ruling affirmed the decision to block only three of the Trump Board's rule changes, determining that they were substantive changes that required the NLRB to solicit public feedback. However, the court overturned the blockage of two other changes, reasoning that these were merely procedural and did not necessitate public input. Multiple other changes went unchallenged.
By contrast, the Biden-era Board's Final Rule signals a decisive move away from such requirements, promoting what the NLRB Chair Lauren McFerran characterized as the "basic principle of the National Labor Relations Act that representation cases should be resolved quickly and fairly." Emphasis on quickly.
Final Rule's Key Changes
As noted, the Board's Final Rule ushers in significant changes aimed at streamlining the process of pre-election hearings and notices and reframes the purpose of a pre-election hearing. Pre-election hearings will now be scheduled to open eight calendar days from the service of the Notice of Hearing, down from 14 business days, and limitations have been placed on regional directors' discretion to postpone the pre-election hearing. In addition, the pre-election hearing will only address whether a question of representation exists. Accordingly, disputes concerning individuals' eligibility to vote or inclusion in an appropriate unit are now not ordinarily litigated or resolved prior to an election, and regional directors have authority to exclude evidence that is not relevant to determining whether there is a question of representation. Under the 2019 rule, individual eligibility and inclusion issues were "normally" to be litigated at the pre-election hearing and resolved by the regional director prior to the election. Also, employers must now post the Notice of Petition for Election within two business days after service of the Notice of Hearing, instead of five business days.
The non-petitioning party's (aka, the employer) Statement of Position responding to the petition is another focus of change. Generally speaking, it will be due seven calendar days after the service of the Notice of Hearing, consistent with the shortened timeline for the opening of the pre-election hearing. Relatedly, the petitioning party will no longer be required to respond to that statement of position in writing in advance of the hearing. Now, the petitioner need only respond to the statement of position orally at the start of the pre-election hearing. This change seems designed to resurrect the "ambush" characteristics of the Obama Board's rules. Additionally, obtaining an extension of the due date for filing the Statement of Position will require demonstrating "extraordinary circumstances." For those of us that remember the not-so-distant past, this meant waiting on pins and needles to learn whether an adjournment request to attend a child's graduation, for instance, might be granted. In addition, the Final Rule ditches the previously established 20-day post-decision waiting period for an election, directing officials to schedule the vote for "the earliest date practicable" after election petitions are approved.
Lastly, the Rule's amendments also deal with the post-hearing process. It reinstates the 2014 requirements for post-hearing briefs. Parties may file post-hearing briefs with the regional director only upon the regional director's special permission following a pre-election hearing or with the hearing officer only upon the hearing officer's special permission following a post-election hearing, and within the time-frame determined by the regional director or hearing officer, and addressing only the subjects permitted by the regional director or hearing officer. 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, with an extension of an additional 10 business days available upon a showing of good cause. According to McFerran, "Restoring only permissive post-hearing briefing permits regional directors and hearing officers adequate flexibility to request briefing in the rare complex case and eliminates redundant and repetitive briefing, and consequent delay, in the more commonplace straightforward cases."
In all, the Final Rule effectively restores the union election process closer to its state in 2014, signaling a reversion to practices that prioritize holding the election quickly over identifying the proper unit and eligible voters.
As with prior changes to the Board's election processes, the new rule (unless successfully enjoined) will become effective four months from the date of publication to ensure adequate time for the NLRB's Regional offices to implement the new procedures. The rule will be published in the Federal Register on August 25, 2023 and will take effect on December 26, 2023.
Legal Implications and Future Impact
The NLRB argues that its decision to issue the rule without first publishing a draft regulation was justified on the grounds that the changes are procedural and thus exempt from the typical notice-and-comment period. Clearly, some employers will feel otherwise.
The future impact of these changes extends beyond legal considerations. The Final Rule is likely to influence the balance of power between labor and management. The timeline from petition to election will undoubtedly be shortened. Unions will be able to obtain elections more quickly and avoid potentially meritorious complaints about the eligibility of voters within a proposed bargaining unit. Required postings must be posted sooner, the non-petitioning party's statement of position must be filed quicker, pre-election hearings will generally be limited to issues only affecting representation, the right to brief issues will become harder and requests for postponements or extensions of pertinent dates will be few and far between. In sum, employers will have less time to get their message out to the employees – whatever that message may be.
All in all, the expedited speed of the election process could bolster unionization efforts as workers will have less time to consider their voting options, potentially leading to an even greater surge in union activity under the general guise of vote now and figure it out later. When facing such a rocket-docket, employers should consider engaging with counsel to: develop an analysis of possible unit issues (or even draft position statements), create a sample campaign or campaign in a box, and more proactively train supervisors and managers in the art of developing positive employee relations.
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