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December 22, 2019

NLRB “Dials Back” Ambush Election Rule

As the Labor-Management Relations Group at Proskaur LP explains, the National Labor Relations Board (NLRB) recently issued a new regulation that reverses an Obama-era union elections rule.

Set to take effect on April 16, 2020, the regulation sets reasonable time limits for a union election process by:

  • Ensuring pre-election hearings will no longer be scheduled to open eight calendar days after a hearing notice is served on the parties. Now, there must be at least 14 business days between the hearing notice and the pre-election hearing.
  • Giving employers five business days, instead of two, to post a “Notice of Petition for Election” indicating that an election has been requested.
  • Allowing employers eight (instead of seven) days to file a Statement of Position.
  • Increasing the number of days, from two to five, that employers have to assess a stipulated election agreement or the issuance of a Decision and Direction of Election.
  • Clarifying that elections will normally not be scheduled before the twentieth business day after the date a Decision and Direction of Election is issued.

The new rule also:

  • Permits parties to litigate issues regarding unit scope and voter eligibility in a pre-election hearing.
  • Restores the parties’ right to file post-hearing briefs with the Regional Director as of right.
  • Requires the petitioning party to file its own Statement of Position at least three business days before the pre-election hearing.
  • Does not allow the Regional Director to certify election results if a request for review is pending or if one could still be timely filed.

Proskauer says, “the new rule will allow employers to more meaningfully identify and raise unit issues as well as properly prepare for litigating such issues at a pre-election hearing.” Click here to read more from The National Law Review.

As part of the Coalition for a Democratic Workplace, MSCI had opposed the Obama-era regulation.