The NLRB has announced long-awaited major modifications to its controversial 2014 election rule. The draft rule will be published on December 18 and will go into effect 120 days after that, on April 16, 2020.
Critics of the so-called Quickie Election Rule are bound to view this as good news. The Board characterizes this draft as important to allow parties adequate time to prepare and to avoid unnecessary litigation.
Among the changes under the proposed rule are:
Pre-Election Hearing Date: Moved from eight days from service of papers by the NLRB on the employer to 14 business days.
Statement of Position Due Date: Currently, non-petitioning parties have seven days from service of papers to file this comprehensive document. The amended rule moves that to eight business days.
A New Responsive Statement of Position: For the first time, petitioners will have to respond to employers’ Statements of Position, asserting their position with respect to issues raised. This new petitioner statement of position will be due at noon three business days before the scheduled hearing.
Unit Scope and Voter Eligibility to be Determined Pre-Election: The Board will return to its earlier standard, holding hearings prior to an election to resolve disputes concerning unit scope and voter eligibility (including issues of supervisory status) before an election is directed.
Restoration of Post-Hearing Brief: Current rules largely dispense with briefs following a pre-election hearing. The amended rule would restore the right to file a brief within five business days of the hearing, with the possibility of one extension.
Elimination of the “Quickie” Election: The amended rule would set the standard for scheduling an election as no less than 20 business days following the direction of election. Currently, elections are sometimes held in less than two calendar weeks following the filing of a petition.
Impounding Ballots upon Filing a Request for Review: To further address resolution of unit and eligibility issues before votes are counted, upon a timely appeal of a regional director’s decision, a scheduled election will go forward, but the ballots will be impounded pending resolution of the review.
In addition, among other changes, the amended rule will provide more time before employers must post and distribute the “Notice of Petition” and deliver final voter eligibility lists.
These changes are positive for the employer community and will give employers greater certainty regarding voter eligibility and unit composition.
We will provide a more in-depth review of the proposed rule soon. Please contact us with any questions.