As discussed in our previous article, on December 26, 2023, representation case procedures will change under a rule published by the National Labor Relations Board (NLRB) in August 2023. On December 8, 2023, NLRB General Counsel Jennifer Abruzzo issued GC Memorandum 24-02 covering the changes to representation case procedures.
The final rules rescind the Trump-era Board’s 2019 election rules and restore the 2014 Obama-era rules. The new rules are an effort by the NLRB to remove barriers to “fair and expeditious resolution of representation cases.” The primary goal is twofold: to reduce the time between filing a petition and the election and to expedite post-election litigation.
The memorandum describes how the 2023 election rules differ from the 2019 election rules and provides guidance about representation case processing once the 2023 election rules take effect.
Key points from the memorandum are highlighted below:
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Prompt pre-election hearings: Under the new schedule, pre-election hearings will be held eight calendar days after the notice of hearing. The 2019 election rules permitted hearings to be scheduled 14 business days after service of notice. Under the new rules, a party can request a two-business day postponement but only after establishing extraordinary circumstances. The 2019 rules allowed postponement for good cause and did not limit the number of days.
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Disseminating election information to the workforce: The employer will have two business days after receiving the notice of hearing to post the notice of petition for election so that all employees can view it. The same rule applies for electronic distribution to all employees where that is the normal form of communication. Under the 2019 rule, employers had up to five business days to post and distribute the notice of the election. Failure to properly post or distribute could be grounds for setting aside an election.
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Efficient hearings: The new rules dictate that pre-hearing litigation will be significantly limited to issues regarding whether the election should be held. The memo states that only issues “necessary to determine whether an election should be conducted" will be heard before the election. All other disputes will be deferred to post-election hearings. Written briefs for a pre-election hearing are permitted only with permission from the regional director. Disputes over which employees should be eligible to vote and the appropriate bargaining unit will not be litigated or resolved before the election.
The foreseeable problem is that where bargaining unit membership isn’t resolved prior to the election, some employees may cast ballots and then be deemed outside of the bargaining unit in a post-election hearing. To remedy this problem, the new rules permit the regional director to designate in the election notice that certain workers will vote subject to challenges to their eligibility, and they are neither included nor excluded from the bargaining unit. Eligibility of such workers will be resolved after the election.
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Expeditious elections: The 2023 rules will no longer observe the previous rule permitting a 20-business day waiting period between the regional director’s decision that an election will be held and the date of the election. The regional director(s) will be directed to schedule elections for “the earliest date practicable” after the decision to go forward with an election. This change is based on the premise that once the decision of an election is made, it should be carried out expeditiously.
The general counsel concludes her memo indicating that these new rules should better carry out the purpose of the National Labor Relations Act (NLRA) by creating a fair, efficient, and expeditious resolution to matters regarding representation cases. She takes another swing at diminishing Trump-era rules regarding labor relations.
The general counsel’s latest memo offers a valuable occasion to underscore the importance of employers closely monitoring these changes. In a matter of weeks, any employer confronted with a representation petition will be contending with a significantly condensed timeline leading up to an election. This compressed timeframe may restrict employers' capacity to effectively communicate any opposition in response to a union campaign.
In light of the new 2023 election rules and the Cemex decision, we are likely to see an increase in election petitions in the new year. For more information, please reach out to Employers Council’s Labor Relations team.
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