The National Labor Relations Board (NLRB or the Board) issued a direct final rule on August 24, that makes 10 amendments to the election process, which will take effect December 26, 2023. The rule rescinds amendments made by the Board in 2019. The direct final rule returns representation case procedures to those that existed beginning in 2014, when the Board majority appointed by President Obama sought to better achieve its statutory duty to accurately, efficiently, and speedily resolve questions of representation. According to the Board, underlying these basic provisions is the animating principle that representation cases should be resolved quickly and fairly.
In part, the new rule allows regional directors to schedule elections for “the earliest date practicable” after issuance of a decision and direction of election. The earlier rule, in effect since 2019, had imposed a 20-business-day waiting period between the decision and direction of the election. Further, the amendments provide that the pre-election hearing will be scheduled to open eight calendar days from the service of the notice of the hearing, as compared to fourteen business days under the former rule.
The Board also determined that disputes concerning an individual’s eligibility to vote or inclusion in an appropriate unit do not need to be litigated or resolved prior to an election, and regional directors have the authority to exclude evidence that is not relevant to determining whether there is a question of representation. Under the 2019 rule, individual eligibility and inclusion issues were “normally” to be litigated at the pre-election hearing and resolved by the regional director prior to the election.
The Board believes this will avoid unnecessary litigation on collateral issues that can result in a substantial waste of resources. Further, Board Chair McFerran stated that “by removing unnecessary delays from the election process, the new rule will allow workers to more effectively exercise their fundamental rights.”
The Board believes that this final rule may expedite representation cases, but it could prolong the process. Member Kaplan’s dissent states that “the Supreme Court has already recognized that pre-election determination of [eligibility] issues supports the National Labor Relations Act’s interest in efficient and timely elections, in part because parties that are unhappy with the results of elections will not have the opportunity to delay the finalization of results by litigating these issues later.”
Along with the August 25, decision in Cemex, the Board continues to make union organizing difficult on employers, and Member Kaplan has questioned the benefit to employees. As he stated in his dissent, “[o]ne is left to wonder how much the voters will actually benefit from the requirements that elections be held as quickly as possible when they find themselves exercising this right without fully understanding the arguments concerning representation and the ways in which their vote may affect them.”
The Board’s final rule is exempt from the notice and comment period because it is purely procedural.
It’s important for employers to work with their legal counsel to understand the many recent decisions from the NLRB to ensure that they are up to date with the latest requirements. Steptoe & Johnson’s Labor Relations Team can assist you in complying with the NLRB’s new rules and requirements and can generally assist with NLRA-related issues, including policy review; organizing campaigns and negotiations; and responding to or filing unfair labor practices, grievances, and arbitrations.
For additional information about this alert or other labor and employment issues, please contact any of the authors or any member of Steptoe & Johnson’s Labor Relations Team.