NLRB Changes Obama-Era Labor Union Election Rules

As experts at the law firm Kelley Drye explain, on June 1, the National Labor Relations Board (NLRB) announced that its new labor union election rule will take immediate effect. The new rules end a regulation implemented by the Obama administration in 2014 that had expedited union elections. Specifically, the Trump administration changed certain procedural deadlines and allow more time between the date a union files a petition for an election and the date when the workers vote on unionization. It also gave employers more opportunities for employers to challenge the process.

The AFL-CIO has sued to keep the 2014 regulations in place and, on May 30, 2020, U.S. District Court Judge for the District of Columbia Ketanji Brown Jackson issued an order to keep the NLRB from implementing major portions of the new rule, including:

• Reinstitution of pre-election hearings for litigating eligibility issues;
• Timing of the date of election;
• Voter list timing;
• Election observer eligibility; and
• Timing of Regional Director certification of representatives.

Judge Jackson’s order did not strike the new rule’s remaining procedural provisions, including the extension of time to the election process and the new pre-election hearing procedures. Instead, Judge Jackson asked the NLRB to reconsider those provisions.

Two days after the ruling, on June 1, the NLRB announced that the procedural portions of the rule that were unaffected by the court’s order were effective immediately. These provisions include:

• Scheduling the hearing at least 14 days from issuance of the notice of hearing;
• Posting the notice of election within five days instead of two days;
• Changes in timeline for serving the non-petitioning party’s statement of position;
• Requiring petitioner to serve a responsive statement of position;
• Reinstatement of Post-Hearing Briefs;
• Reinstating Regional Director discretion on the timing of a notice of election after the direction of an election;
• Ballot impoundment procedures when a request for review is pending;
• Prohibition on bifurcated requests for review;
• Certain changes in formatting for pleadings and other documents; and
• Terminology changes and defining days as “business” days.

The NLRB’s general counsel issued guidance explaining how employers should implement these provisions. That guidance is here.

The Coalition for a Democratic Workplace explains this rule—and the history of it—in more depth here. The U.S. Chamber of Commerce has more information here.