The National Labor Relations Board (“NLRB”) issued a final rule over the holidays and restored balance to its union election procedures. The new NLRB Election Rule takes effect April 16, 2020. .
The Quickie Election Rule of 2015
The Obama-era Board implemented the current rules in 2015. The partisan-driven rule change upended eighty years of legal precedent. Business advocates dubbed them the “Ambush Election Rule” or “Quickie Election Rule”. The changes significantly shortened the time from the filing of a representation petition until the time of the election. The changes made it increasingly difficult for businesses to respond to salacious and often false union claims.
The motive behind the 2015 rule was to tip the scales in favor of unions to help them win more elections. Firms like National Labor Relations Advocates, were able to make the necessary adjustments to the shortened time frame. Unions have never realized the hoped-for outcome of increased victories.
The 2020 NLRB Election Rule Fixes the Unfair Changes of 2015
The New Rule Extends Campaign Time in Representation Elections
Union advocacy groups decry the new final rule as unnecessary. Ironically, they claim the new rule, which restores eighty (80) years of precedent, will tip the scales in favor of employers. The facts do not support that notion. The Board’s own statistics demonstrated the win-rate of unions remained largely the same during the time of the Ambush Rules as it was for the eighty years prior. The new rule rolls back the quickie election time frame from as little as ten (10) days to at least twenty (20) days but retained the “as soon as is practicable” requirement for the scheduling of the election.
By the time a company receives a petition, a union has been busy for months or years. Time limitations do not affect a union’s ability to get its message to its potential constituents. The law protects the union’s right to get its message out even pre-petition, during an organizing effort. It does not protect employers equally. The law greatly restricts employer communication prior to a formal petition filing. Those restrictions only relax slightly after a petition has been filed. Any time extension in the new rule does not in any way hinder a union’s ability to organize a group of employees.
The New NLRB Election Rule Restores Due Process to All Parties
The other major shift brought about by the new final rule is the return of due process. The 2014 change prohibited litigation of issues critical to the conduct of the election. The quickie rule deferred important matters until after the election. The rule prevented litigation of important issues like bargaining unit makeup, supervisory status of employees, and other matters until after the election. The Employer was forced to wage a costly campaign before it knew what employees may be affected.
The 2015 rule also required Regional Directors to certify election results even if there were a request for review of the results pending before the Board. The by-product was that a prematurely-certified union would often demand bargaining and file unfair labor practice charges alleging unlawful refusal to bargain, even as the Board considered the request for review that, if granted, could render the certification null and void.
The 2015 rule eliminated the right to file post-hearing briefs although in rare instances a hearing officer could request briefs and the parties were permitted to file. Post-hearing briefs allow parties to clarify and focus their positions and the legal basis supporting them. The net result of the new final rule allowing briefs in all hearings is that more well-reasoned and well-informed decisions will be rendered.
Highlights of NLRB Election Rule of 2015 and the 2020 Fix
| 2015 Rule | 2020 Fix | |
| Time from Petition Filing to Election | As short as ten (10) days | No sooner than twenty (20) days |
| Issues Eligible for Pre-Hearing Litigation | Almost all issues were deferred until Post-Election Hearing. This often caused the entire election process to be moot and wasted precious resources, time, and money. | The new rule restores employer due process and allows for challenges to the petition to proceed before a potentially costly and lengthy election occurs. |
| Time of Pre-Election Hearing | Eight (8) days after Notice of Hearing | Fourteen (14) days after Notice of Hearing |
| Right to File Post-Hearing Briefs | Eliminated entirely unless hearing officer specifically requested. | Restored due process to allow for briefs to be filed after all hearings. |
| Right to Request Review of Results Before a Certification of Representation is Issued | Eliminated. The NLRB ordered certification. It also ordered bargaining to begin while any legal challenges moved forward. This sometimes resulted in unnecessary bargaining when the review was upheld and the election overturned. | Restored. No election shall be certified until any legally valid review has concluded. This avoids the unnecessary waste of time resources and money on a bargaining process not yet required by a certification. |
Conclusion
The table articulates five of the most prominent changes, but there are many more changes beneficial to employers. Our experts are happy to discuss how the new rule affects you.
The extension of the minimum time from the direction of election until the holding of the election from as few as ten (10) calendar days to twenty (20) business days, the ability to clarify the election parameters prior to any election, and the restoration of due process brings balance back NLRB representation elections. The National Labor Relations Act protects workers’ rights to engage in and refrain from union organizing activity. These reasonable changes affords employees the right to secure adequate information from both sides.
This new rule is a great development for employers because it restores nearly a century of rights stripped away in the 2015 change. Employers and their advocates adjusted to the new paradigm, and the rate of unionization continues to drop. Restoration of these rights allows even more employers the opportunity to be victorious. They will have the time and due process protections needed to wage an effective campaign.
If your business is under attack by a union organizing effort, schedule a free consultation with one of our advocates. Click here. Our advocates level the playing field and protect your rights.
