On December 13, 2019, the National Labor Relations Board (“NLRB”) finalized a rule that substantially modifies the union election regulations that went into effect on April 14, 2015. The April 2015 regulations had been regarded by many as encouraging so-called “ambush” elections that disadvantaged employers. The new regulations, which go into effect on April 16, 2020, provide for a lengthier and more substantive process by incorporating key changes, which we have summarized in the following chart.

Current Regulations New Regulations
Pre-Election Hearing The pre-election hearing is scheduled to begin only eight (8) calendar days from the Notice of Hearing. Under the new regulations, the pre-election hearing will be scheduled to occur 14 business days from the Notice of Hearing.
Notice of Petition Employers are required to serve the Notice of Petition within two (2) business days after filing the Notice of Hearing. Under the new regulations, employers must post and distribute a Notice of Petition for Election within five (5) business days of service of the Notice of Hearing.
Date of Election NLRB regional directors are directed to schedule elections for the earliest practicable date. Under the new rules, absent a waiver by the parties, the election will not be scheduled before the 20th business day after the date of the Direction of Election.
Voter List After an election is directed, employers are required to generate a voter eligibility list containing the name and contact information of eligible voters.   Employers are required to furnish the list within two (2) business days. Employers will now have five (5) business days to produce the voter list to the union and to the NLRB.
Statement of Position Employers are required to file the Statement of Position within seven (7) calendar days after the service of the Notice of Hearing. Under the new regulations, Employers will now have eight (8) business days after service of the Notice of Hearing to file the Statement of Position. Regional directors will now also have discretion to extend that time period for good cause.

 

The new regulations also require that unions file a Statement of Position in response to the employer’s Statement of Position within three (3) business days after receiving the employer’s statement.

Disputed Issues Issues pertaining to voter eligibility and a unit’s scope are litigated after an election. Under the new regulations, issues pertaining to voter eligibility and a unit’s scope will now be litigated prior to the election, as they had been prior to the 2014 changes. Parties may stipulate to allow disputed employees to vote subject to challenge and resolution after the election.
Post-Hearing Briefs Parties are only allowed to make oral arguments about disputed issues during the pre-election hearing. Parties now have the right to file a post-hearing brief, in which parties explain their positions about disputed issues, following a pre-election hearing. Post-hearing briefs are due within five (5) business days following the conclusion of a pre-election hearing. Parties may also request an extension for up to 10 additional business days for good cause.
Certification of Election Regional directors are required to certify the results of an election that a union won even if the employer was appealing issues that would cause the results to be dismissed. Under the new rules, regional directors will not certify the results of an election while an appeal is pending or while the deadline to file an appeal has not expired.

Takeaway:

The new regulations resolve many of the issues that employers raised with the previous regulations concerning the timeline to submit documents or provide notice. However, the regulations are not a wholesale repeal of the previous regulations and employers should be aware of their duties and the various deadlines involved in elections.

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We are of course available to advise and assist throughout the election process.

Putney, Twombly, Hall & Hirson LLP