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HR ALERT: NLRB 2019 Final Election Rule Update

Many businesses have followed the implementation of the "Ambush" or "Quickie" election rule implemented by the National Labor Relations Board (NLRB) in 2014. That rule change provided for a much shorter period for an employer to prepare for a union election. In December 2019, the NLRB issued a new Final Rule scaling back provisions of the 2014-era Rule that was scheduled to become effective May 31, 2020.

On May 30, the U.S. District Court for the District of Columbia blocked several aspects of the NLRB's 2019 final rule, which were scheduled to become effective May 31. The District Court's decision prevents these five changes in the 2019 final rule from going into effect, including:

  • Reinstitution of pre-election hearings for litigating eligibility issues;
  • Timing of the date of election;
  • Voter list timing;
  • Election observer eligibility; and
  • Timing of regional director certification of representatives.

On June 1, the NLRB issued a press release announcing that it plans to proceed with the amendments that were not impacted by the court's ruling, which include:

  • Scheduling the hearing at least 14 days from issuance of the notice of hearing instead of the previous eight days;
  • Posting the notice of election within five days instead of two days;
  • Changes in the timeline for serving the non-petitioning party's statement of position;
  • Requiring a petitioner to serve a responsive statement of position;
  • Reinstatement of post-hearing briefs;
  • Reinstating regional director discretion on the timing of a notice of election after the direction of an election;
  • Ballot impoundment procedures when a request for review is pending;
  • Prohibition on bifurcated requests for review;
  • Certain changes in formatting for pleadings and other documents; and
  • Terminology changes and defining days as "business" days.

In addition, the NLRB general counsel issued guidance (GC-20-07) on the implementation of these provisions. The NLRB indicated that it will appeal the D.C. Circuit's decision, which means this situation remains fluid as litigation continues. We will continue to update once the appeal is ruled upon.

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If you have any questions about this HR Alert, the NLRB, unions, or any other issues impacting your business, please contact CGWG.