NLRB Ambush Election Rules Now Effective
December 28, 2023
As we discussed in September, the National Labor Relations Board (NLRB or Board) has adopted a new rule returning to expedited procedures for union representation elections; these new procedures took effect on December 26, 2023. According to the Board, the new procedures are meant to “meaningfully reduce the time it takes to get from petition to election in contested elections and . . . expedite the resolution of any post-election litigation.”
The Board’s General Counsel published a Guidance Memorandum(GC 24-02) about the new procedures on December 8. She incorporates an earlier Guidance Memorandum (GC 15-06), which outlined procedure changes from 2015, as providing “valuable guidance relevant to the 2023 Election Rule.” As such, those navigating or preparing for a union election petition will want to carefully review both Guidance Memorandum.
Under the new rule, an employer will have only 2 business days after service of the Notice of Election Hearing to post the Notice of Petition for Election to employees. Failure to post the Notice of Petition could result in the election being set aside. In addition, the non-petitioning party (often the employer) will now normally have only 7 calendar days to file a written response to the election petition (“statement of position”). The petitioning party (often the union) is no longer required to file a written response to the statement of position. Instead, the pre-election hearing will generally be held 8 calendar days after the petition is filed, and the petitioning party can respond to the statement of position orally at that hearing. Regional Directors have discretion to postpone a pre-election hearing, but only for up to 2 business days if a party shows special circumstances. An additional extension is permitted upon a showing of extraordinary circumstances, but only for 2 business days.
As we previously discussed, the pre-election hearing will now be limited to determining whether an election should be conducted. Issues of voter eligibility and unit scope inclusion will not normally be heard or considered until after the election. Parties are limited to oral argument at the hearing and will not file written briefs after the hearing unless permitted by the Regional Director. The goal of the new procedures is to have the election take place at the “earliest date practicable.”
These changes impede an employer’s ability to run a meaningful campaign in response to an organizing drive and deny employees the time necessary to make informed decisions. When considered in conjunction with the Board’s recent changes to the union recognition process via Cemex Construction Materials Pacific, it is more important than ever for employers to train employees on card campaigns and educate supervisors about union campaigns, the Board’s election procedures, and avoiding unfair labor practices. The attorneys of KZA are well versed in labor law and can you help you with this training and navigating the legal requirements involved in an NLRB election.
KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.