The NLRB Scales Back Obama-Era Union Election Regulations

In December 2014, the National Labor Relations Board finalized a rule aimed at expediting the union election process. At the time of its enactment, the rule was scorned by business advocates and management-side lawyers as an “ambush election rule,” which many claimed gave unions “a tremendous advantage.”

The Obama-era rule’s critics received a reprieve as the NLRB scaled back—but did not completely dismantle—many of the rule’s more rigid time constraints.

Although the new rule mandates more than a dozen changes to the Board’s election procedures, the NLRB was careful to note that “the Board is not rescinding the 2014 amendments in their entirety.” Rather, the new rule, which takes effect in April 2020, relaxes the timeline for several pre-election hearing requirements.

Most notably, the new rule mandates that a hearing be held within 14 days after a union files a petition, up from the eight days required by the 2014 rule. Similarly, under the 2014 regulations, after a petition was filed, employers were required to post and distribute a Notice of Petition for Election within two business days of service of the Notice of Hearing. Although the Obama-era notice requirements remain intact under the new rule, employers must now post and distribute the notice within five business days.

The 2014 rule also obligated employers to develop a Statement of Position, identifying any disputed issues related to the Petition and outlining the employer’s position on those issues. Although employers are still required to develop a Statement of Position under the new rule, employers now have eight business days after service of the Notice of Hearing to do so, instead of the prior seven.

One substantive change the new rule creates is the requirement that the union file a responsive, written Statement of Position within three business days of receiving the employer’s initial Statement of Position. Previously, the union had no obligation to respond to the employer’s position in a written statement but could instead do so orally.

Other noteworthy changes include:

• Allowing disputes over unit scope and voter eligibility, including issues of supervisory status, to be resolved pre- instead of post-election
• Allowing a party to file a post-Hearing brief following a pre-Election Hearing, without first obtaining leave from a regional director to do so
• Maintaining the requirement that elections be set for “the earliest date practicable,” but adding that, absent mutual waiver, an election take place no sooner than the twentieth business day after the date the Direction of Election issues
• An employer now has five business days to furnish a voter list to the union and the NLRB’s regional office after an election is directed, instead of the previous two-day deadline
• Finally, regional directors are no longer required to certify election results while the results are pending appeal, known as a Request for Review.

Proponents of the new rule laud the new procedures’ allowance for additional contemplative time, complaining that the prior rule forced employers to sacrifice their ability to protect their business interests for the sake of expedience. The new rule is not without its critics, however, as Lauren McFerran, the sole Democrat currently on the five-member NLRB Board, lambasts the new rule as “a textbook example of arbitrary agency action” that “avoid[s] examining relevant, readily-available data,” suggesting a legal challenge to the new regulations could be looming.

The new rule becomes effective 120 days after publication in the Federal Register, which is set for Dec. 18, 2019. Assuming no delays, the rule will come in to effect on April 16, 2020.