Newsline

Despite being litigated for years, the Biden administration’s National Labor Relations Board has revived controversial policy from the Obama era in the form of its Representation-Case Procedures final rule. The direct final rule, issued without notice and the opportunity to comment, essentially restores provisions of the “ambush” election rule of 2014 and rescinds the remaining ABC-supported provisions of the 2019 final rule. The rule will apply to representation petitions filed on or after Dec. 26, 2023, and employers will have less time to respond to representation petitions.

 “The Board’s efforts to again reduce the amount of time between when a union files a representation petition and an election takes place imposes unnecessary urgency on employers, leaving them susceptible to violations of their due process rights and deprives employees of the time needed to become fully informed before deciding whether or not to unionize,” said Ben Brubeck, ABC vice president of regulatory, labor and staff affairs. “Ultimately, the rule infringes on the rights of employers and employees to a fair pre-election process and will have a particularly adverse impact on small construction firms, which typically do not employ legal counsel."

Changes in the 2023 final rule include:

1. Scheduling of Pre-Election Hearing. The pre-election hearing will generally be scheduled to open eight calendar days from service of the Notice of Hearing. Under the 2019 rule, the pre-election hearing would generally be scheduled to open 14 business days from service of the Notice of Hearing.
2. Postponement of Pre-Election Hearing. Regional directors have discretion to postpone a pre-election hearing for up to two business days upon request of a party showing special circumstances and for more than two business days upon request of a party showing extraordinary circumstances. Under the 2019 rule, regional directors could postpone a pre-election hearing for an unlimited amount of time upon request of a party showing good cause.
3. Due Date for Nonpetitioning Party’s Statement of Position. The nonpetitioning party’s Statement of Position will be due seven calendar days after service of the Notice of Hearing (three days sooner than under the 2019 rule). Under the 2019 rule, a nonpetitioning party’s Statement of Position was due to be filed eight business days (or 10 calendar days) after service of the Notice of Hearing.
4. Postponement of the Statement of Position. Regional directors have discretion to postpone the due date for the filing of a Statement of Position for up to two business days upon request of a party showing special circumstances and for more than two business days upon request of a party showing extraordinary circumstances. Under the 2019 rule, regional directors could postpone the due date for an unlimited amount of time upon request of a party showing good cause.
5. Responsive Statement of Position. A petitioner shall respond orally to the nonpetitioning party’s Statement of Position at the start of the pre-election hearing. Under the 2019 rule, a petitioner was required to file and serve a responsive written Statement of Position three business days prior to the pre-election hearing.
6. Posting and Distribution of Notice of Petition for Election. An employer will post and distribute the Notice of Petition for Election to inform its employees approximately three days earlier than under the 2019 rule. An employer has two business days after service of the Notice of Hearing to post the Notice of Petition for Election in conspicuous places in the workplace and to electronically distribute it to employees if the employer customarily communicates with its employees electronically. Under the 2019 rule, an employer had five business days for the requisite posting and electronic distribution.
7. Litigation of Eligibility and Inclusion Issues. Disputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit ordinarily do not need to be 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.
8. Briefing Following Pre- and Post-Election Hearings. Parties may file post-hearing briefs with the regional director only with the regional director’s special permission (following pre-election hearings) or hearing officer only with the officer’s special permission (following post-election hearings) and within the time 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.
9. Specification of Election Details in Decision and Direction of Election; Notice of Election. Regional directors ordinarily should specify the election details—(the type, date(s), time(s), and location(s) of the election and the eligibility period)—in the decision and direction of election and should ordinarily simultaneously transmit the Notice of Election with the decision and direction of election. The parties will have already taken positions with respect to the election details in writing prior to the hearing and on the record at the hearing. Under the 2019 rule, regional directors were allowed to convey election details in the decision and direction of election (and to simultaneously transmit the Notice of Election with the decision and direction of election), but emphasis was placed on their discretion to convey them in a later-issued Notice of Election.
10. Elimination of the 20-Business Day Waiting Period Between Issuance of the Decision and Direction of Election and the Election. Regional directors shall schedule elections for “the earliest date practicable” after issuance of a decision and direction of election. While the 2019 rule contained the same language, it also imposed a 20-business day waiting period between the decision and direction of election and the election that the 2014 rule had eliminated.

See the NLRB comparison chart of prior and new Representation Case Procedures as well as the fact sheet for more information.  

Additionally, learn more about the 2023 final rule and what comes next in ABC general counsel Littler Mendelson’s analysis.

Also, ABC will be offering an ABC members-only webinar on NLRB recent decisions and rules. Details will be posted soon in Newsline.

ABC vehemently opposed the 2014 rule and filed a legal challenge against it.