Last Friday, the National Labor Relations Board announced a change to representation case procedures as part of an early holiday gift for employers. Generally, the changes extend deadlines for parties involved in R-cases, which can provide employees valuable time to digest the competing messages they hear and lessen the impact of a union “ambush.” The Board issued the changes as a final rule pursuant to its authority to change its own representation case procedures.
Chairman John Ring was joined by fellow Republican Members Marvin Kaplan and William Emanuel in issuing the new rule. Member Lauren McFerran, a Democrat whose term expired on Monday, dissented. The final rule was published this morning and will become effective in 120 days. The new rule includes the following noteworthy changes:
Pre-election hearings. The pre-election hearing will be scheduled to open 14 business days from the date of service of the notice of the hearing. The prior timetable was 8 calendar days, with a maximum extension of up to 2 days for extraordinary circumstances. Regional directors, as under the current regulations, will have discretion to postpone the opening of the hearing for good cause.
Posting Notice of Petition. The deadline for posting the Notice of Petition for Election will be 5 business days after service of the notice of hearing. The deadline under the current rule is 2 business days.
Employer statements of position. Non-petitioning parties (generally, employers in a typical R-case) will have 8 business days after service of the notice of hearing to file and serve their Statement of Position. Under the current rule, they must file no later than 1 day before the opening of the pre-election hearing (typically 7 calendar days after service of the notice of hearing).
Union statements of position. Petitioners (generally, unions) 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 3 business days before the hearing is scheduled to open (which is also 3 business days after the initial Statement(s) of Position must be received), at noon. The current rules require the petitioner to respond orally to the Statement(s) of Position at the start of the pre-election hearing.
Challenges to voters. Challenged voters will be litigated at the pre-election hearing and resolved by the regional director before an election is directed. The parties can agree to permit disputed employees to vote subject to challenge and defer litigation until after the election.
Post-hearing briefs. Parties will be entitled to file post-hearing briefs with the regional director after pre-election and post-election hearings. Briefs will be due within 5 business days of the close of the hearing, although hearing officers may grant an extension. Under the current rules, post-hearing briefs are permitted only by permission of the regional director.
Excelsior lists. The employer will have 5 business days to furnish the required voter list, formerly known as the Excelsior list, after the direction of election. Under the current rule, the employer has only 2 business days to provide the list.
Many of these changes are intended to make the election process more efficient by providing employers more time to investigate issues and prepare for the pre-election hearing and the campaign period. The extra time also allows time for internal agreement between the parties that can streamline the election process. For example, permitting additional time for the employer to produce the voter list will increase the accuracy of the list and reduce the need for Board intervention.
One of the most significant changes is allowing voter challenges to be resolved before the election. This will help to promote meaningful campaign communication because employers and unions will know in advance who the voter group will be. Determining an employee’s status to vote in the election – for example, whether the employee is a “supervisor” within the meaning of the National Labor Relations Act – may also help prevent conduct that could lead to objections or unfair labor practices. At the same time, the new rules expressly permit the parties to agree to defer litigation on these issues, again promoting promptness and efficiency.
Another significant change is the newly granted right of the parties to file post-hearing briefs before and after the election. This change will allow the parties more time to craft and narrow their arguments, which will in turn assist the Board in focusing on the critical facts, issues, and arguments that have been raised by the parties.
Overall, the new changes do not completely repeal the current “quickie” election rule, which took effect four years ago under an NLRB with a Democratic majority appointed by President Obama. Although the Obama Administration rule reduced the typical campaign period on average from 37 days to 23 days, the new rule announced last week will still keep things moving. However, the new rule should mitigate some of the damage to meaningful campaign communications and a fair election process that the current rule has caused. The new rule could also signal more departures from the Obama-era policies that have plagued the R-case election procedure.