In a press release today, the NLRB announced it has postponed the effective date of the Election Protection Final Rule. The new effective date will be July 31, 2020.
The New Rule Summarized
The Pre-election Hearing
The Region will hold the pre-election hearing fourteen (14) business days from issuance of the Notice of Hearing. This is an increase from the old rule’s time frame of eight (8) business days.
Notice of Petition for Election
An employer must post the Notice of Petition for Election within five (5) business days after the service of the Notice of Hearing. This is an increase from the old rule’s time frame of two (2) business days.
Service of Statements of Position
The required Statement of Position from the employer must be served on all parties within eight (8) business days after service of the Notice of Hearing. This is an increase from the old rule’s time frame of seven (7) business days. Also, the rule requires petitioners serve all parties a Statement of Position by noon at least three (3) days before the scheduled start of the hearing. There was no such requirement in the old rule.
Ancillary Petition Issues (unit scope, voter eligibility, supervisory status issues)
The Region must normally litigate these issues at the pre-election hearing and resolve them prior to an election being directed. The parties may mutually agree to litigate these issues post-election. The old rule deferred these critical issues to post-election litigation.
Post-Hearing Briefs
All parties shall have the right to file a post-hearing brief after a pre-election hearing. The old rule only permitted post-hearing briefs with special permission from the Regional Director.
Notice of Election
The Regional Director has the discretion to issue a Notice of Election after issuing the direction of an election. This was a clarification of language in the old rule that read “ordinarily will.”
Scheduling the Election
Following the Board’s Casehandling Manual, the Region will schedule the election at the earliest date practicable, but normally elections will not be scheduled before the twentieth (20th) business day after the direction of election has been issued. The parties may mutually waive the time limits. The old rule allowed for the scheduling of an election with no minimum time between the direction of the election and the election date.
Request for Review/Impounding Ballots
When a request for review has been filed within ten (10) business days after the issuance of the Direction of Election, if the Board hasn’t ruled on the request and the election is held, any ballots that could be affected by the request for review will be segregated and all ballots impounded unopened pending a decision by the Board. A party may file a request for review more than ten (10) days after the Direction of Election, but in that case no ballots shall be impounded. The old rule did not make impoundment automatic.
Format & Procedure for Requests for Review Codified
This clarified that requests for review and opposition to requests for review shall be formatted according to the rules. The new rule also expressly allows an opposition to request for review. The old rule had inconsistent formatting requirements and contained no provision universally allowing oppositions.
Election Observers
When possible the observers will be from the voting unit. If no such observer is available, the party may select a non-supervisory employee. The old rule provided no guidance eon who is and who is not an acceptable observer.
Certification of Election Results During Period for Request for Review
The Regional Director will not certify election results is: (1) a request for review is pending, or (2) the time has not passed for a request for review to be filed. Regional Directors could certify results under the old rule despite a pending request for review. The rule even allowed a request for review filing up to fourteen (14) days after a certification.
Effect of Rule Changes
The overriding effect of these changes in the rules is the restoration of fairness to the representation election process. The restoration of due process ensures that an employer can protect their rights. These rights are protected prior to an ambush election whose validity under the law is a genuine question of fact. The additional time in the new rule allows employers to address legal issues, discover the concerns of the workers, and effectively communicate with them during the election campaign.
It is rare the “D.C.” gets it completely right. This is one of those rare instances!