This week, the United States National Labor Relations Board (NLRB) issued a final rule modifying certain procedures relating to union representation elections. The rule, which will go into effect as of December 26, 2023, reverses a rule issued in 2019 by the Trump administration and largely reverts the applicable procedures to those issued in 2014 by the Obama administration. The changes are intended to streamline and speed up the election process.

The new rule specifies the following:

  • The pre-election hearing will be held 8 calendar days from service of a Notice of Hearing, down from 14 calendar days in the 2019 rule;
  • Regional directors may postpone a pre-election hearing for 2 business days upon a party's showing of "extraordinary circumstances"—a change from the 2019 rule under which a postponement could be indefinite and made upon a showing of "good cause";
  • A party's Statement of Position will generally be due 7 calendar days from service of a Notice of Hearing, down from 8 business days;
  • Regional directors may postpone the due date for a Statement of Position for 2 business days on a showing of "special circumstances," or longer on a showing of "extraordinary circumstances"—instead of indefinitely for "good cause";
  • The petitioning party now need not respond in writing to the Statement of Position but only need respond orally at the pre-election hearing;
  • An employer must post the Notice of Petition for Election within 2 business days of service of the Notice of Hearing, down from 5 business days;
  • Disputes relating to employees' inclusion in the bargaining unit and/or eligibility to vote, which under the 2019 rule were "normally litigated" at a pre-election hearing (and which thus often delayed the holding of an election) will now generally be litigated after the election;
  • Parties now may file post-hearing briefs only by permission of the regional director or hearing officer, not as of right;
  • Regional directors will now be expected to include the details of the election (e.g., date, time, location) in the decision directing an election, rather than in a later-issued Notice of Election; and
  • Elections are to be scheduled for "the earliest date practicable," without the 2019 rule's mandatory 20-business day waiting period.

As noted above, similar timelines to the above were in effect several years back and the result was speedier elections, and a preference by the NLRB to postpone election issues until after a vote occurs. For employers whose workforces may seek to organize, it is important to be aware of this tightening of timelines and have preparations in place to respond quickly in the event of a union organizing drive.

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