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NLRB Issues New Rule Allowing for Quicker Union Elections

By Dustin Brown posted 08-31-2023 01:01 PM

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The National Labor Relations Board (NLRB) has finalized a rule significantly shortening the time it takes to hold union elections. The new rule, scheduled to take effect on December 26, 2023, reverses a 2019 Trump administration rule that lengthened the election process and returns key election procedures put in place in 2014 under the Obama administration to expedite the election process.

The new rules ultimately reduce the time it takes to get from petition to election in contested elections and expedite the resolution of any post-election litigation. Notable changes under the new rule are shown below.

Scheduling of Pre-election Hearing

- 2019 rules: Pre-election hearings generally are scheduled to open 14 business days from service of the Notice of Hearing.
- 2023 rules: Pre-election hearings generally are scheduled to open eight calendar days from service of the Notice of Hearing.

Postponement of Pre-election Hearing

- 2019 rules: Regional directors can postpone a pre-election hearing for an unlimited amount of time upon request of a party showing good cause.
- 2023 rules: Regional directors can postpone a pre-election hearing for up to two business days upon request of a party showing special circumstances and for more than two business days upon request of a party showing extraordinary circumstances.

Due Date for Non-petitioning Party’s Statement of Position

- 2019 rules: A non-petitioning party’s Statement of Position is due to be filed eight business days after service of the Notice of Hearing.
- 2023 rules: A non-petitioning party’s Statement of Position is normally due seven calendar days after service of the Notice of Hearing.

Postponement of the Statement of Position

- 2019 rules: Regional directors can postpone the due date for the filing of a Statement of Position for an unlimited amount of time upon request of a party showing good cause.
- 2023 rules: Regional directors can postpone the due date for the filing of a Statement of Position for up to two business days upon request of a party showing special circumstances and for more than two business days upon request of a party showing extraordinary circumstances.

Responsive Statement of Position

- 2019 rules: A petitioner must file and serve a responsive written Statement of Position three business days prior to the pre-election hearing.

- 2023 rules: A petitioner must respond orally to the non-petitioning party’s Statement of Position at the start of the pre-election hearing.

Posting and Distribution of Notice of Petition for Election

- 2019 rules: An employer has five business days after service of the Notice of Hearing to post and distribute the Notice of Petition for Election to inform its employees.
- 2023 rules: An employer has two business days after service of the Notice of Hearing to post and distribute the Notice of Petition for Election to inform its employees.

Litigation of Eligibility and Inclusion Issues

- 2019 rules: Individual eligibility and inclusion issues are normally to be litigated at the pre-election hearing and resolved by the regional director prior to the election.
- 2023 rules: Individual eligibility and inclusion issues ordinarily do not need to be litigated or resolved prior to the election, and regional directors have authority to exclude evidence that is not relevant to determining whether there is a question of representation.

Briefing Following Pre- and Post-election Hearings

- 2019 rules: Parties are entitled to file post-hearing briefs with the regional director following pre-election hearings and with the hearing officer following post-election hearings up to five business days following the close of the hearing, with an extension of an additional 10 business days available upon a showing of good cause.
- 2023 rules: Parties may file post-hearing briefs only with the regional director’s special permission (following pre-election hearings) or hearing officer’s special permission (following post-election hearings) and within the time and addressing only the subjects permitted by the regional director or hearing officer.

Specification of Election Details in Decision and Direction of Election; Notice of Election

- 2019 rules: Regional directors may specify the election details (the type, date(s), time(s), and location(s) of the election and the eligibility period) in the decision and direction of election.
- 2023 rules: Regional directors will ordinarily specify the election details (the type, date(s), time(s), and location(s) of the election and the eligibility period) in the decision and direction of election and shall ordinarily simultaneously transmit the Notice of Election with the decision and direction of election.

Elimination of the 20-Business Day Waiting Period Between Issuance of the Decision and Direction of Election and the Election

- 2019 rules: There must normally be a waiting period of 20 business days before an election can be held following issuance of a decision and direction of election.

- 2023 rules: There is no mandated waiting period between the issuance of a decision and direction of election and the election; instead, regional directors shall schedule elections for the earliest date practicable.

Next Steps

Employers should expect increased union-organizing activities after the rule goes into effect. Under the new rule, an election could occur in as little as 14 to 21 days after the initial petition. Accordingly, employers will find themselves with reduced time to execute an impactful communication program and address crucial matters amid a union election.

Employers should take proactive steps and be ready with a campaign strategy tailored to the shortened time frame mandated by the new rule. Employers should think about training to help managers and supervisors look out for union organizing activities and be ready with a response to any new petitions. If your organization needs assistance with union-organizing drives or any labor issues, please contact Employers Council.