September 7, 2023
On Aug. 24, the National Labor Relations Board (NLRB) issued a Final Rule that marks a significant shift in the landscape of labor relations in the United States. This rule, set to take effect on Dec. 26, dramatically shortens union election processes, prompting heated debates between labor and management interests.
In 2014, during the Obama administration, significant changes were made to expedite elections, eliminating a 25-day waiting period and earning the monikers “ambush” or “quickie” election rules. However, in 2019, under President Trump’s leadership, the NLRB relaxed several deadlines and expanded pre-election briefings, leading to a lengthier election timeline.
The NLRB’s recent Final Rule, under the Biden administration, represents a decisive departure from the 2019 regulations. Its primary aim is to restore the quick resolution of representation cases, emphasizing speed and efficiency. Key changes include:
Shortened Pre-Election Hearings: Pre-election hearings will now open eight calendar days after the Notice of Hearing is served, down from the previous 14 business days.
Limited Disputes in Pre-Election Hearings: The pre-election hearing will focus solely on whether a question of representation exists, excluding disputes regarding individual eligibility or inclusion in an appropriate unit.
Changes to Statement of Position: The non-petitioning party (typically the employer) must file their Statement of Position within seven calendar days of receiving the Notice of Hearing. The petitioner need only respond orally at the hearing’s start.
Postponement Challenges: Obtaining an extension for filing the Statement of Position will now require demonstrating “extraordinary circumstances.”
Quickened Election Date: The Final Rule removes the 20-day post-decision waiting period for an election, aiming to schedule the vote as soon as practicable.
In essence, this Final Rule brings the union election process closer to its 2014 state, prioritizing expedience over detailed examination.
While the NLRB justifies its rule as procedural and therefore exempt from the notice-and-comment period, it has already faced opposition from some employers who argue otherwise. The rule could indeed invite legal challenges.
Beyond legal considerations, the Final Rule will significantly impact the balance of power between labor and management. Unions will now obtain elections more swiftly, reducing the window for employers to discourage unionization or communicate their messages to employees effectively. Employers must adapt to this expedited process by proactively engaging with counsel, analyzing bargaining unit issues, and improving employee relations strategies.
Source: Western Growers
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