National Labor Relations Board Announced Major Changes to Union Election Rules

On December 13, 2019, the National Labor Relations Board (the Board) announced major changes to its union election rules. Expected to take effect on April 16, 2020, the new rules modify what is commonly known as the "quickie election rules" or "ambush election rules." These rules were adopted in 2014 under the Obama administration Board and favored unions by speeding up the election process. The short time between filing of a representation petition and the actual vote by employees allowed employers little time to respond. The new rules proposed by the Board this month do not rescind the rules that were enacted in 2014, but instead extend the time for employers to respond to union election petitions and allow additional time for employees to collect information before voting on the issue of union representation.

Proposed rule changes include:

- Pre-Election Hearing: Must be held within fourteen business days from the filing of the petition (The rules previously allowed for eight calendar days; the new ruling specifically states business days instead of calendars days)

- Notice of Petition for Election: Notice must be posted and distributed within five business days after the Notice of Hearing (The rules previously allowed two business days to post and distribute)

- Statement of Position Due Date: The non-petitioning party (normally the employer) will have eight business days after the service of the Notice of Hearing to file its Statement of Position.

- New Responsive Statement of Position: Petitioners will have to respond to issues raised under the employer's Statement of Position. This new petitioner statement will be due at noon three business days prior to the scheduled hearing.

- Restoration of Post-Hearing Brief: The rule allows for a party to file, within five business days of the close of the hearing, a Post-Hearing Brief. This is where parties can explain their position on issues in dispute. The new rule will also allow hearing officers the ability to grant an extension of up to ten additional business days for good cause.

- Elimination of the Expedited Election Process: The new rules allow for an election to be scheduled a minimum of twenty business days after the date of the Direction of Election, absent a wavier by the parties. This modifies the "the earliest date practicable" directive to return to the pre-2014 timing.

- Voter List and Unit and Voter Eligibility: The new rules allow for employers to have five business days to furnish the voter list to the union and the NLRB's regional office. The Board will return to the earlier standard (prior to 2014) by holding hearings prior to an election to resolve issues concerning unit scope and voter eligibility. These hearings will also determine any issues regarding supervisory status.

These new regulations revert many of the most problematic aspects of the 2014 amendments back to the pre-2014 process and timing. Employers should be aware of these changes for their workplace.

Barrett McNagny will provide an update at the2020 Human Resources Conference on February 13, 2020 in Fort Wayne or on May 6, 2020 in Elkhart on these rules and their impact to employers. To register for the conference visit www.barrettlaw.com/Conference

About the Author:

Anthony Stites represents business entites in all facets of their employment matters. He is an AV® Preeminent™ rated attorney based on Martindale-Hubbell's peer review ratings, has been selected for inclusion in Super Lawyers in America® nine times and has been selected for inclusion since 2016 in the Best Lawyers® in America publication. Best Lawyers in America® recognized him in 2017 and 2018 as Fort Wayne’s "Lawyer of the Year" in the area of Employment Law - Management. A Fellow in the Indiana Bar Foundation, he regularly presents at local and national seminars on legal topics. He can be reached at (260) 423-8860. 

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