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Full Steam Ahead, At Least In Part, for Union Election Rule Changes

At the end of last year, the National Labor Relations Board (NLRB) announced it was going to drastically modify its union election procedures and dial back significant aspects of the “ambush election rule” that took effect in 2014. The AFL-CIO filed legal challenges against the agency’s proposed modifications, arguing the Board failed to follow certain administrative procedures, and scored a partial victory this past weekend when a judge blocked parts of the new rules from going into effect as scheduled on May 31, 2020. On June 1, however, the NLRB issued a press release stating it will move ahead with all parts of the new rule that the judge did not block.

According to the statement from the Board, the following election rule changes are to be in effect immediately:

  1. Scheduling the hearing at least 14 days from issuance of the notice of hearing
  2. Posting the notice of election within five days instead of two days
  3. Changes in timeline for serving the non-petitioning party’s statement of position
  4. Requiring petitioner to serve a responsive statement of position
  5. Reinstatement of post-hearing briefs
  6. Reinstating regional director discretion on the timing of a notice of election after the direction of an election
  7. Ballot impoundment procedures when a request for review is pending
  8. Prohibition on bifurcated requests for review
  9. Certain changes in formatting for pleadings and other documents
  10. Terminology changes and defining days as “business” days

The NLRB’s general counsel also issued a detailed memo offering further guidance on the immediate changes. Anyone who handles union elections before the Board should consider reviewing this memo for guidance on what procedures are in effect moving forward.

While the portions of the rule going into effect may not significantly impact the time between a union petition and an election – a time frame nearly halved by the 2014 ambush election rule relative to the rules in effect prior to that – they still bring about welcome change for employers. The agency further stated it intends to appeal the judge’s ruling, meaning we could yet see the rest of the proposed changes roll out this year. Stay tuned. 


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