NLRB Approves Final Rule Updating Procedures for Representation Elections
The National Labor Relations Board (NLRB) adopted a final rule amending its procedures governing union representation elections that largely reverses amendments the Trump-era Board made in the 2019 Election Rule that has been the subject of ongoing litigation. The newly-approved rule restores union election processes first adopted by the Board in 2014. The rule is scheduled to publish in tomorrow’s Federal Register and will take effect on, and apply to representation petitions filed on or after, December 26, 2023.
In the preamble to its new final rule, the NLRB notes that the 2019 rule “substantially frustrated” the 2014 amendments “that were responsible for the improvements in the Board’s ability to fairly and expeditiously resolve questions of representation” and added additional time to the representation case process. This included imposing delays between the filing of the petition and the pre-election hearing, between the opening of the pre-election hearing and issuance of a decision and direction of election, between the issuance of the decision and direction of election and the election, and between the election and certification of the results.
To address these issues, the new final rule makes numerous revisions to the 2019 rule, including: (1) limiting NLRB regional directors’ discretion to postpone pre-election hearings and the due date for filing of a Statement of Position; (2) directing employers to post and distribute the Notice of Petition for Election to inform its employees approximately 3 days sooner than under the 2019 rule; (3) providing that, generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing; and (4) eliminating the current 20-business day waiting period and requiring regional directors to schedule elections for “the earliest date practicable” after issuance of a decision and direction of election.
A fact sheet on the final rule is available here.
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