Labor & Employment Law Daily Without notice and comment, NLRB issues final rule on representation-case procedures
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Friday, December 13, 2019

Without notice and comment, NLRB issues final rule on representation-case procedures

By Pamela Wolf, J.D.

The final rule upends many aspects of the 2014 Obama-era election rule.

Without notice and comment, the National Labor Relations Board on December 13 released a final rule on representation-case procedures that upends the Obama-era rule promulgated through the public notice and scrutiny process, citing “the Board’s clear regulatory authority to change its own representation case procedures” and its “longstanding practice of evaluating and improving its representation case procedures.”

Pointing to the most controversial aspects of the Obama Administration’s 2014 rule, the Board said that each of those provisions should be “modified in order to strike a better balance among the competing interests the Board’s representation procedures are designed to serve.” Notably, however, the Board is not rescinding the 2014 amendments to representation-case procedures in their entirety.

Unit scope and voter eligibility. The final rule restores some of the procedures in effect before the Obama Administration changes. Notably, while acknowledging that the primary purpose of the pre-election hearing is to determine whether there is a question of representation, 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.

However, the parties may agree to let disputed employees vote subject to challenge, deferring litigation concerning such disputes until after the election. Under the prior rules, disputes “concerning individuals’ eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.”

Post-election and post-hearing briefs. The right of parties to file a post-hearing brief with the regional director following pre-election hearings has also been restored and extended to post-election hearings as well. Briefs will be due within five business days of the close of the hearing, although hearing officers may grant an extension of up to 10 additional business days for good cause. Under the prior rules, briefs were permitted only upon special permission of the regional director.

Time to election. Under the final rule, the regional director will continue to schedule the election for the earliest date practicable, but absent waiver by the parties, normally will not schedule an election before the 20th business day after the date of the direction of election. This period will permit the Board to rule upon certain types of requests for review prior to the election. This is largely consistent with the Board’s procedures prior to the 2014 Obama-era amendments, which provided that the regional director would normally schedule an election 25 to 30 days after the issuance of the direction of election.

Ballot impoundment. When a request for review of a direction of election is filed within 10 business days of that direction, where the Board has not ruled on the request, or has granted it, before the conclusion of the election, ballots whose validity might be affected by the Board’s ruling on the request or decision on review will be segregated and all ballots will be impounded and remain unopened pending the ruling or decision.

A party may still file a request for review of a direction of election more than 10 business days after the direction, but the pendency of that request for review will not require impoundment of the ballots. This is a partial return to the Board’s procedures prior to the 2014 amendments, which removed the provision for automatic impoundment.

Other key changes. The Board’s final rule makes several other key changes:

  • The pre-election hearing will generally be scheduled to open 14 business days from notice of the hearing; regional directors will have discretion to postpone the opening of the hearing for good cause. (The pre-election hearing was scheduled to open eight calendar days from the notice of hearing under prior rules).
  • The employer will be required to post and distribute the Notice of Petition for Election within five business days after service of the notice of hearing. (Prior rules required posting and distribution within two business days.)
  • Non-petitioning parties will be required to file and serve the Statement of Position within eight business days after service of the notice of hearing; regional directors will have the discretion to permit additional time for filing and service for good cause. (Previously the Statement of Position had to be filed and served one day before the opening of the pre-election hearing—typically seven calendar days after service of the notice of hearing).
  • The petitioner will need to file and serve a Statement of Position on the other parties responding to the issues raised by any non-petitioning party in a Statement of Position. The responsive Statement of Position will be due at noon, three business days before the hearing is scheduled to open—three business days after the initial Statement(s) of Position must be received; timely amendments may be made on a showing of good cause. (The petitioner was previously required to respond orally to the Statement(s) of Position at the start of the pre-election hearing.)
  • The regional director’s discretion to issue a Notice of Election after issuing a direction of election is emphasized. (Prior rules provided that regional directors “ordinarily will” specify election details in the direction of election.)
  • Formatting and procedural requirements for all types of requests for reviews have been systematized, with all requests for review and oppositions to review subject to the same formatting requirements.
  • A party may not request review of only part of a regional director’s action in one request for review and subsequently request review of another part of that same action. (The prior rule was not clear whether parties were permitted to proceed this way.)
  • The employer has five business days to furnish the required voter list following the issuance of the direction of election. (The employer had only two business days to provide the list under the prior rule.)
  • In selecting election observers, whenever possible a party will select a current member of the voting unit; when no such individual is available, a party should select a current nonsupervisory employee. (The prior rules simply provide that parties may be represented by observers.)
  • The regional director will no longer certify the results of an election if a request for review is pending or before the time has passed during which a request for review could be filed. (Regional directors were previously required to certify election results despite the pendency or possibility of a request for review; in cases where a certification issued, requests for review could be filed up until 14 days after the issuance of the certification.)

Effective date. The final rule will be effective on the date it is published in the Federal Register, currently slated for December 18.

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