NLRB Continues Pro-Labor Swing by Reinstating 2014-Era Election Rules

The National Labor Relations Board (NLRB) adopted a Final Rule on Aug. 24 eliminating the remaining provisions of the 2019 regulation which extended the time period for union elections. The Final Rule eliminates the 20-day waiting period between election approvals and votes and directs officials to schedule votes for union elections on the “earliest date practicable” after election petitions have been approved.

Additional changes include limiting when and how long regional officials may postpone pre-election hearings at a party’s request, moving up the deadline for employers to respond to election petitions and allowing parties to file supplemental briefs to pre- or post-election hearing issues only in rare instances.

The Final Rule completes the NRLB’s withdrawal of changes to the union election process made during the Trump Administration. In March, the NLRB rescinded multiple provisions made during the Trump Administration which had been challenged by the AFL-CIO in federal court, including changes that:

1. 1. Allowed employers up to five business days to furnish the voter list following the direction of a union election.
   2. Precluded regional directors from issuing certifications following elections if a request for review is pending or during the time in which a request for review could be filed.
   3. Limited a party’s selection of election observers to individuals who are current members of the voting unit whenever possible were implanted without necessary notice.

In May 2020, U.S. Supreme Court Justice Ketanji Brown Jackson, then a district court judge, ruled that the Trump-era rules were enacted without necessary public feedback. The United States Court of Appeal for the D.C. Circuit upheld the decision, in part. The NLRB eliminated the changes shortly thereafter in March 2023. The most recent changes fully restore the union election process to its Obama-era form.

The most recent changes are likely to allow union organizers an easier path toward union certification. A longer election process is generally viewed by pro-union organizations as a disadvantage to unions because it allows employers more time to challenge union messaging.

The new rule takes effect on Dec. 26, 2023. But litigation could slow its implementation. The NLRB did not seek public comment before adopting the new rule, saying that public input was not necessary because it received public comments before adopting the Obama-era and Trump-era rules.

Phelps is available to answer any additional questions that employers may have about how these developments might impact them and their employees. Please contact Michael B. Victorian or any member of Phelps’ Labor and Employment team for compliance advice or guidance.