NLRB GC Memo Reinforces Shorter Timelines, Quicker Elections Coming Under New Election Rule
This month, National Labor Relations Board (NLRB or the Board) General Counsel issued a guidance memo (GC Memo 24-02) discussing how the final rule effectively reinstating the “quickie election” procedures (which we discuss here) will be implemented. The final rule went into effect on December 26, 2023. In short, the memo reinforces that employers on the receiving end of union petitions will have far less time to respond to and contest petitions for union representation, and ultimately prepare for a union election conducted by the Board. Here are the primary takeaways of what the GC deemed to be the most significant changes brought about by the NLRB’s final rule:
Earlier Posting of Notice of Petition: Employers must now post the Notice of Petition within 2 business days, which is 3 business days earlier than under the 2019 rules. Failure to do so is likely to result in a re-run election if the employer ultimately wins the election.
Quicker Pre-Election Hearings: Such hearings will now be scheduled 8 calendar days after a petition is filed. According to the GC, hearings will now occur about 10 days earlier than under the now-lapsed 2019 election rules. In addition, it will be more difficult to postpone hearings. Postponements of one or two business days must be supported by special circumstances, and longer postponements must be supported by extraordinary circumstances. Under the 2019 election rules, no such showings were required. As a result of these changes, hearings will occur at an earlier juncture leaving employers with less time to prepare for these hearings.
Deferral of Eligibility and Inclusion Issues Until Post-Election: Issues such as whether an individual is or is not a supervisor (eligibility) or whether a certain job classification should be in the voting unit (inclusion) will now generally be deferred to the post-election stage. The GC directed that such issues should only be brought to a pre-election hearing if resolution is necessary to determine whether an election should be conducted in the first place. The 2019 rules were less restrictive and resulted in more pre-election hearings – which result in later elections – but employers will more frequently have to wait until after an election is conducted to litigate these issues.
Post-Hearing Briefs Require “Special Permission”: Parties will be provided an opportunity for oral argument prior to the close of a hearing. But post-hearing briefs will be permitted only with the “special permission of the Regional Director in the case of pre-election hearings, and the Hearing Officer in the case of post-election hearings.” Under the 2019 rules, parties had the right to file post-hearing briefs. The GC’s likely intent here is to cut out the time spent waiting for and reviewing parties’ briefs, thereby expediting elections where a pre-election hearing must be held.
With the “quickie election” procedures back in effect, employers must be prepared for elections to occur within just a few weeks of a petition being filed by a union. Thus, employers would be well-served to have a plan in place to act expeditiously if it receives a representation petition.