On December 13, 2019 the National Labor Relations Board (the Board) announced a number of modifications to its representation case procedures – the so-called quickie or ambush election rules. These modifications are scheduled to be published in the Federal Register on December 18, 2019 and are anticipated to take effect on April 16, 2020. Employers should familiarize themselves with these modifications before they go into effect next spring.
Background to Quickie Election Rules
As an alternative to seeking voluntary union recognition, employees or unions may file a representation petition asking the Board’s regional office to determine whether employees wish to be represented by a union. The Board’s regional director is tasked with investigating these petitions and determining whether an election should be conducted, and may issue a Direction of Election. The Board’s regional office may conduct the election, hold pre- and post-election hearings, and rule on requests for review of regional determinations. The Board’s rules govern how regional offices oversee elections.
As detailed by Varnum in previous advisories, in 2014 the Obama-era Board adopted a final rule amending its representation case procedures. The 2014 changes appeared to favor unions by speeding up the election process. For example, under the 2014 changes, pre-election hearings had to be scheduled eight (8) days after the hearing notice was served on the parties. Critics of the rule changes also argued that the rules were unfair to employees because they allowed an election to move forward before disputes over voter eligibility or appropriate bargaining units were resolved, thereby preventing employees from fully understanding the meaning of their vote.
In 2017, the now Republican-controlled Board announced it would seek comment on quickie election rules; however, potential changes were put on the back burner. Finally, in a press release issued on December 13, 2019 the Board announced that it was not rescinding the 2014 rules and instead would be adopting modifications intended to relax the 2014 procedural changes, and create a more fair and efficient election process. The modifications will assist employers in effectively responding to union election petitions and will help employees collect the information they need in order to fully decide the issue of union representation.
Comparison of Current/Modified Procedures
The following table provides a side-by-side comparison of the current and modified procedures:
|Current Rule||Modified Rule|
|Pre-election hearings scheduled 8 calendar days from Notice of Hearing||Pre-election hearings scheduled 14 business days from Notice of Hearing|
|Notice of Petition for Election must be posted within 2 business days after service of notice of hearing||Notice of Petition for Election must be posted within 5 business days after service of notice of hearing|
|Non-petitioning party must file position statement 1 day before pre-election hearing||Non-petitioning party must file position statement within 8 business days after notice of hearing served|
|Petitioning party not required to file responsive position statement||Petitioning party must file a responsive position statement at noon 3 business days before hearing|
|Disputes concerning scope/voter eligibility need not be resolved before election conducted||Disputes concerning scope/voter eligibility litigated at pre-election hearing and resolved prior to direction of election|
|Post-hearing briefs are permitted only upon special permission||Parties permitted to file post-hearing briefs with regional director and after election|
|Regional director “ordinarily will” issue Notice of Election following Direction of Election||Regional director has “discretion” to issue Notice of Election following the Direction of Election|
|Election is scheduled for earliest date practicable, no precise timeline||Absent agreement to hold earlier, election scheduled a minimum 20 business daysafter date of direction of election|
|Employer must furnish voter list 2 business days after issuance of direction of election||Employer must furnish voter list 5 business days after issuance of direction of election|
|No stay of election pending request for review||If a request for review is filed within 10 business days after Direction of Election and the Board does not rule on request or grant request before election, then ballots will be impounded and remain unopened pending decision|
Unlike 2014 where the Board adopted its final rule through the formal notice-and-comment procedure, the Board adopted the 2019 modifications as a final rule without soliciting public feedback. However, the Board is arguably not required to follow such formal procedures because the Board is only amending its own procedures, not issuing or rescinding rules that would affect parties’ substantive rights.
It is unclear at this stage whether the Board’s decision will be subject to legal challenge by interest groups who may argue that the Board violated the Administrative Procedure Act by failing to take public comment or alternatively for failing to give an explanation as to why the Board declined to engage in notice-and-comment procedures. Absent a legal challenge to these modifications, they will go into effect as planned om April 2020.
For questions regarding these recent developments, please contact any member of Varnum’s Labor and Employment Team.