Hunton Employment & Labor Perspectives

Yesterday, the National Labor Relations Board published a final rule modifying its representation case procedures.

The final rule takes effect April 17, 2020, and scales back—but does not completely undo—the changes to election regulations instituted by the Obama-era’s Board that have caused employers heartburn since 2015. Those changes effectively sped up the election process and cut down on employers’ ability to litigate many important legal issues prior to voting, putting employers at a disadvantage.

The Board’s latest revisions affect a wide range of petitioners’, non-petitioners’, and the regional director’s election-related obligations, and, according to the final rule, are intended to:

• permit parties additional time to comply with various pre-election requirements instituted in 2015;
• clarify and reinstate some procedures that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues prior to an election; and
• more appropriately balance the interest in expeditious processing of questions or representation with the interest in efficient, fair, and accurate resolution of questions of representation.

The most notable revisions provide employers a broader window during which to prepare for pre-election hearings, which are necessitated when parties do not agree on the voting unit and other issues.

For example, pre-election hearings will be scheduled to open 14 business days, as opposed to 8 calendar days, from the notice of hearing; Employers now have 8 business days after receiving the hearing notice to provide a Statement of Position briefing their arguments for the Board, as opposed to 1 day before the hearing; and employers are required to post and distribute the “Notice of Petition for Election” within 5 business days after service of the notice of hearing, as opposed to 2. Further, post-election hearings will now generally be set 21 days after the tally of ballots.

Previously, parties could not as easily predict when a pre- or post-election hearing would be held, as practices varied by Region. Now, the dates of the hearings are essentially standardized, although the Board has broader discretion in granting extensions to these deadlines.

Additionally, employers can once again litigate questions of supervisory status and voter eligibility issues in the pre-election hearing if those issues are not agreed to by the parties. This is a helpful change for employers, as it will eliminate the confusion over how to treat employees during the election process who may, or may not be, supervisors. That confusion arose under the Obama-era rules, under which supervisory and voter inclusion disputes were not resolved until after an election was conducted.

Other changes to the regulations are meant to modernize the Board’s procedures related to electronic filing and communications, provide earlier and more complete information to the parties, and reduce unnecessary litigation.

Practically speaking, the Board’s latest revisions provide employers with not only more time to make their case to the Board prior to a pre-election hearing, but also more time to communicate with employees about the pros and cons of unionizing prior to an election. As employers are often unaware of growing support for unionization amongst their workforce until after the petition for an election is filed, such additional time can be invaluable to employers.

The final rule explains the revisions in 302 pages of text. Accordingly, employers should consult with experienced legal counsel to navigate representation case procedures.