The NLRB’s Revised Representation Case Procedures, Part I: The New Pre-Election Procedures

The National Labor Relations Board (NLRB), led by members appointed by President Barack Obama and with a pro-labor agenda, implemented many procedural changes during the last decade. One of the more significant and wide-sweeping changes of the Obama Board occurred on December 15, 2014, when the Board issued revamped representation-case procedures unraveling the Board’s long-standing protocols for processing Petitions for Election. These revamped regulations took effect on April 14, 2015, and gained notoriety as the “quickie” or “ambush” election rules because of their expressed intent to expedite the time between the filing of an election petition and the conduct of the election.

The 2014 amendments not only set aggressive timelines for holding elections but also created additional burdens on employers and other non-petitioning parties by implementing new protocols in the few days following the filing of a petition. For example, the 2014 amendments provided that the pre-election hearing must commence within eight calendar days of issuance of the Notice of Hearing, required the employer to submit a Statement of Position by noon on the day prior to the opening of the pre-election hearing, and allowed just two days from approval of an election agreement or direction of election for submission of the voter list.

The 2014 amendments also contained new procedures, such as directing regional directors to schedule the election on “the earliest date practicable,” requiring the employer to serve the voter list directly on the petitioner and other parties, deferring voter eligibility issues (including issues of supervisory status) until after the election, and increasing the employee information the employer should include on the voter eligibility list.

On December 18, 2019, the NLRB, now with a majority of members appointed by President Donald Trump, published final rules changing and clarifying many of the procedures established in the 2014 amendments. The rules, which will take effect April 16, 2020, state unequivocally that “the Board is not rescinding the 2014 Amendments in their entirety.” Rather, the 2019 rules address issues of fairness and statutory compliance the 2014 amendments altered or did not address. The Board opted to forego a lengthy notice and comment period prior to publishing these rules and chose instead to rely on its rulemaking authority to issue the changes and clarifications.

Member Lauren McFerran, the only remaining Obama appointee on the Board when it announced the 2019 rules, provided a lengthy dissent to the majority’s action. Her dissent criticized the implementation of changes without notice to, or comment from, the public regarding the changes. Member McFerran also argued that many of the changes were aimed at lengthening the time between the filing of the petition and the conduct of the election. Claiming that the majority’s assessment of representation procedures was flawed and not supported by any data, Member McFerran concluded that the new rules were arbitrary and capricious and undermine the Act’s mandate for timely elections to determine representative status.

The 2019 rules were published in the Federal Register at 84 FR 69524 and revise Part 102, Subpart D of the Board Rules and Regulations, 29 CFR 102. Below are detailed highlights of the 2019 rules, including employers’ voter list obligations, requirements on the timing of pre-election hearings, employers’ obligation to file a statement of position prior to a pre-election hearing, requirements for communicating the notice of petition, and pre-election hearings to resolve disputes regarding the scope of the unit, voter eligibility, and supervisor status. Part two of this series will cover the introduction of evidence and post-hearing briefs, scheduling of elections, the effects of a request for review, and election procedures.

The 2019 Rules

The 2019 rules make a number of minor changes to reflect the use of consistent terminology throughout the rules and corrections to cross-references within the rules. The most notable incidental revision is that all time periods now are calculated using business days. This change fosters uniformity throughout the rules for calculating deadlines and includes a clarification that only federal holidays affect the time calculations. In addition, the 2019 rules include the following changes and clarifications:

Section 102.62—Voter Lists

Employers remain obligated to furnish a voter list consistent with the requirements of the 2014 amendments to the NLRB regional office, the petitioner, and all other parties. The added requirements of the 2014 amendments that a voter list include home phone numbers, personal email addresses, and personal cell phone numbers for all employees remain intact. The 2019 rules, however, increase the time by when the voter list must be filed and served to five business days from the date an election agreement is approved or the date when a direction of election issues. The parties can agree to a shorter time for filing and service of the voter lists.

The Board majority rejected the reasoning of the 2014 amendments that technological advancements facilitate an employer’s ability to generate and serve a voter list, and recognized instead that not all employers maintain computerized files or keep employee information in one location.

Thus, while acknowledging that many employers have produced voter lists within two business days as required in the 2014 amendments, the Board reasoned that the capabilities of some employers cannot be presumed for all employers. Therefore, the “better practice is to set forth a timeline that is unlikely to present difficulties in the first instance and leave it to the parties to agree upon shorter timeframes, as they may deem appropriate.”

The Board majority also rejected the notion that an employer can compile the voter list prior to entry of an election agreement or direction of election because the “precise contours of the unit will not be known” until the election details become final. The additional time will reduce the potential for error or inaccuracies on the list. Finally, with the increased timelines provided in the 2019 rules, the petitioner and other parties are not prejudiced by the increased time for service of the voter list and, in many cases, will have the voter lists longer prior to the election.

Section 102.63—Scheduling of Pre-Election Hearings, Statements of Position, and Posting of Notice of Petition for Election

A. Scheduling of the Pre-Election Hearing

The 2019 rules provide that the pre-election hearing must be set to begin 14 business days from the date the regional office provides notice of the hearing. Extending the pre-election hearing start date from 8 business days to 14 business days makes this timeline similar to the post-election hearing scheduling requirements and reduces unnecessary logistics pressure on regional offices. Further, this additional time is necessary to accommodate changes to the Statement of Position requirements (discussed below), allows the parties additional preparation time that should streamline hearings, and provides the parties more time to explore election agreements obviating the need for a pre-election hearing. The 2019 rules acknowledge the time needed for retention of counsel, identifying and preparing witnesses, gathering information for the Statements of Position and hearing, and arranging hearing-related travel as additional reasons to increase the time by which a hearing must start.

The 2019 rules also revise the applicable standard for postponing the pre-election hearing by permitting the regional director to postpone a hearing for good cause. The regional director also is empowered to determine the appropriate length of postponement. This changes the 2014 amendment limitations allowing a regional director to postpone a pre-election hearing for two business days on a showing of “special circumstances” or for more than two business days with a showing of “extraordinary” circumstances. The 2014 amendments did not define “special” or “extraordinary,” and the two-tiered approach left parties unsure of what standard might apply. The 2019 rules return to and codify the good cause standard that existed prior to the 2014 amendments and provide regional directors with discretion to determine the appropriate length of postponement.

B. Statements of Position

Employers’ Obligations: The 2019 rules retain the requirement that the employer file a Statement of Position in advance of the pre-election hearing, but they extend the time for filing and serving the Statement of Position to noon eight business days after service of the notice of hearing. Regional directors may extend this time for good cause. The Board explained that Statements of Position contribute to the orderly litigation in pre-election hearings by narrowing the disputed issues. They also help in facilitating election agreements. The 2019 rules give regional directors discretion to allow revisions to the employer’s Statement of Position. Moreover, employers still must seek independent extensions of the filing deadline and cannot rely on the postponement of the start of the pre-election hearing to extend the time by which a Statement of Position must be filed and served.

Petitioners’ Obligations: The 2019 rules add the requirement that the petitioner file and serve a responsive Statement of Position addressing the issues raised in the employer’s Statement of Position. This responsive Statement of Position must be filed by noon three business days before the hearing is scheduled to open. The regional director may postpone the filing date for good cause. The requirement for the responsive Statement of Position prior to the hearing is not a new requirement but modifies the 2014 amendment directive that the petitioner must respond to the employer’s Statement of Position at the opening of the pre-election hearing by requiring the response be submitted in writing before the opening of the hearing.

The responsive filing will further narrow the pre-election hearing issues and enhance the possibility of achieving an election agreement. The Board majority rejected Member McFerran’s contention that the responsive Statement of Position is redundant because the petitioner’s position is included on the petition. The petition contains minimal substantive information regarding pre-election issues while the responsive Statement of Position provides detailed insight into the petitioner’s position.

C. Posting of the Notice of Petition for Election

The 2019 rules do not change this notice requirement, which was first introduced in the 2014 amendments. However, employers will now have five business days to post and distribute the Notice of Petition for Election. If an employer normally communicates with employees in the petitioned-for unit electronically, the Notice of Petition for Election must be distributed electronically in addition to being posted within the employer’s facility. To alleviate confusion caused by the 2014 amendments, the 2019 amendments clarify that the electronic distribution can be limited to the employees in the petitioned-for unit and need not be a widespread distribution to all employees. This clarification also applies to Notice of Election posters when an employer is required to distribute the notices electronically.

Section 102.64—The Pre-Election Hearing

One of the more significant changes included in the 2014 amendments was departure from long-standing Board law and existing rules requiring the resolution of voter eligibility issues prior to an election. The 2014 amendments changed Section 102.64(a) to state that “[d]isputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.” Section 102.67 included a related modification allowing regional directors to defer to post-election procedures questions of voter eligibility or inclusion within the unit by directing that any affected employees vote subject to challenge.

The 2019 rules return to the protocol in place before the 2014 amendments, thus permitting disputes regarding the scope of the unit, voter eligibility, and supervisor status to be litigated and resolved prior to the direction of election. Although the parties may agree to defer such issues to post-election procedures, the resolution of voter eligibility issues pre-election is important for all parties to avoid election objections and unfair labor practice allegations arising from questions related to unit scope, voter eligibility, and supervisory status. The Board opined that pre-election resolution of these issues promotes transparency and finality in the election results. Particularly noteworthy is the Board’s acknowledgment that circumstances might arise where the detriment of requiring pre-election resolution of disputed issues outweighs the substantial interest in pre-election resolution of the issues. Thus, the Board stated that the new rules do not impose a requirement for resolving all eligibility issues pre-election but only that such issues “normally” be litigated and resolved pre-election.

Part two of this series examines post-hearing briefs, election scheduling, the effects of requests for review, and more.