The National Labor Relations Board recently scaled back the 2015 “quickie” election rule, which had sped up the timelines for conducting union elections.  Speeding up the process provided an advantage to unions by setting short deadlines that often ambushed employers, leaving them with limited time to react to the election petition.  The new rule offers welcome relief to employers and adds more time to address pre-election issues.

The new rule modifies the 2015 “quickie” election rule in the following significant ways:

Pre-Election Hearing / Statement of Position

• The pre-election hearing will normally be scheduled for 14 business days, rather than 8 calendar days and for good cause the Regional Director can postpone the opening of the hearing.
• Prior to the hearing, employers will be required to serve the statement of position, which sets forth the employer’s legal arguments and contains information about the bargaining unit of employees sought by the union, within 8 business days of the filing of the petition, instead of 7 calendar days. The Regional Director, for good cause, will have the discretion to grant additional time for filing and service of the statement.
• At the hearing, employers can litigate substantive issues regarding the makeup of the bargaining unit and voter eligibility, including supervisory status, rather than leaving these matters to be decided after the election, which was the default method under the 2015 rule. Under that rule, employees would vote in the election even if they were later determined to be ineligible.
• The right for Employers and unions to file post-hearing briefs after the pre-election hearing has been restored. The briefs must be filed within 5 business days and the Hearing Officer may grant up to 10 additional business days for good cause.  Under the 2015 rule, the Board’s regional director handling the election would need to grant special permission for briefs.

Notice of Election / Voter List

• Employers will be required to post the notice of election petition – a notice intended to inform employees that an election petition has been filed by a union – within 5 business days of the filing of the election petition, instead of 2 business days.
• Employers will have 5 business days, rather than 2 business days, to serve the voter list after the direction of election. This list contains employee names, job information, and contact information – home addresses, home and cell phone numbers, and email addresses – which can be difficult to compile for large bargaining units.

Scheduling of Election

• Elections will now not be scheduled before the 20^th business day from the date of the direction of election, rather than on the earliest practical date under the 2015 rule.

Appeal Procedure / Certification of Election Results

• Election result will not be certified if a party files a request for review with the Board. Under the 2015 rule, the Regional Director was required to certify an election result despite a request for review pending before the Board.

The new rule offers commonsense changes to the 2015 “quickie” rule that provides Employers additional business day time periods to raise substantive concerns and compile employee information in the pre-election stage.

George J. “Jerry” Oliver is a partner in the firm’s Labor and Employment Department, resident in its Raleigh office.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.