NLRB Rolls Back Obama “Quickie” Election Rules

On December 13, 2019, the National Labor Relations Board (“NLRB”) announced changes to regulations implemented during the Obama administration that had significantly tilted the NLRB’s election procedures in favor of unions. The Obama rules were commonly referred to as the “quickie” election rules because they accelerated the election process by imposing tight deadlines on employers. Those deadlines were perceived as making it more difficult for an employer to mount an effective informational campaign prior to the election. While the NLRB did not rescind the “quickie” rules in their entirety, the changes are intended to “create a fairer and more efficient process” and “strike a better balance among the competing interests the Board’s representation procedures are designed to serve.”    

If you regularly deal with unions, or if a union is trying to unionize your workforce, here is what you need to know: 

• The preelection hearing will be scheduled within 14 days from notice of the hearing instead of within 8 days. According to the NLRB, “the additional time will permit parties to more easily manage the obligations imposed on them by the filing of a petition and to better prepare for the hearing, thus promoting orderly litigation.” 

• The employer will now have an additional three days (five vs. two) to post and distribute the Notice of Petition for Election. The employer also has three additional days (five vs. two) to provide the required voter list.

• Employers have more time to prepare and submit a Statement of Position. Under the old rules, employers were required to submit a Statement of Position one day prior to the pre-election hearing. Employers now have 8 days after receiving the notice of hearing to file the Statement of Position and have the right to request additional time.

• The union is now required to file a Statement of Position. 

• Disputes concerning unit scope and voter eligibility—including issues of supervisory status—will now normally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. Under the old rules, these issues were not resolved until after the election. According to the NLRB, the new rule “will promote fair and accurate voting as well as transparency by better defining the union in question prior to the election.”

• The new rules restore the right of parties to file post-hearing briefs.

• Elections will be scheduled no fewer than 20 business days after the direction of election. Under the “Obama Board rules,” elections were required to be set within 14 days of the direction of election. 

The new rule becomes effective April 16, 2020. While the pendulum may swing back in favor of unions under any future Democratic controlled NLRB, employers are in a better position to defeat a union election for now.