On August 24, 2023, the National Labor Relations Board (the “Board”) issued a final rule (the “2023 final rule”) amending the federal regulations that govern representation election procedures. The 2023 final rule is the latest in a history of back and forth changes reducing or prolonging the timeframe from a petition for union representation to an election, and from an election to certification of the election results (hereinafter the “representation election process”). Effective December 26, 2023, the 2023 final rule will drastically shorten the representation election process by returning to the standard the Board adopted in 2014. The changes, discussed further below, include:

• Pre-election hearings will be scheduled sooner and take place sooner;
• Statements of Position will be due sooner, and Responsive Statements of Position will normally be oral;
• Regional directors will have limited ability to extend the deadline for filing Statements of Position; and
• Post-hearing briefing will be allowed only where the regional director or hearing officer determines they are necessary and not as a matter of right.

The 2014 and the 2019 Rules

The 2023 final rule continues the back and forth between Democratic and Republican Board majorities. In 2014, the Obama-era Board implemented a rule that made 25 amendments to the existing rules for representation election procedures shortening the timeframe for the representation election process (the “2014 rule”).  The Board promulgated the 2014 rule after giving public notice and seeking comment, as required when making substantive (as opposed to procedural) changes under the Administrative Procedure Act (APA).

In 2019, the Trump-era Board promulgated a rule that made 15 changes to the election procedures (the “2019 rule”) without notice and comment. These changes lengthened the representation election process. The below chart outlines a portion of the changes made by the 2019 rule, including some that were enjoined by, and some that survived, a federal court challenge:

The 2019 rule also included a provision that automatically impounded ballots where a party filed a request for review of a direction of election and the Board either granted the request or did not rule on the request prior to the election.

On January 17, 2023, the United States Court of Appeals for the District of Columbia Circuit issued a decision invalidating three previously enjoined provisions of the 2019 rule:

• The allotment of five business days to the employer from the issuance of the direction of election to file a voter list;
• The delay of certification of election results until after the regional director resolved any requests for review concerning the decision and direction of election or objections to the conduct of the election, or in the absence of such filings, after the time for seeking Board review had passed.
• The mandate that a current member act as a party’s observer, or when no such individual was available, a current nonsupervisory employee.

The D.C. Circuit Court found these provisions were substantive (and not procedural) changes and were invalid as they were promulgated without notice and comment. Additionally, the D.C. Circuit Court found the automatic impoundment provision was contrary to law.

Finally, the D.C. Circuit Court found that the following provisions of the 2019 rule were procedural and therefore validly promulgated:

• Pre-election litigation of voter eligibility, unit scope, and supervisory status; and
• Election scheduling, including the presumptive waiting period of 20 business days following the direction of election.

The case was remanded to the district court.

On March 9, 2023, the Board rescinded the four provisions of the 2019 rule that the D.C. Circuit Court struck down: the voter list, certification of results, selection of manual election observers, and the automatic ballot impoundment provisions. In doing so, the Board returned to the 2014 rule provisions listed above.

When rescinding the four provisions, the Board also stated an intent to “continue to postpone” implementing the two provisions the D.C. Circuit Court found were validly promulgated: pre-election litigation of voter eligibility, unit scope, and supervisory status, and the presumptive 20-business-day waiting period. In other words, the Board signaled an intent to dismantle rules that survived challenge in federal court.

The 2023 final rule

On August 24, 2023, the Board adopted the 2023 final rule, which returned to additional provisions of the 2014 rule. The 2023 final rule makes 10 amendments, with Chair Lauren McFerran stating a goal of upholding the “basic principle of the National Labor Relations Act that representation cases should be resolved quickly and fairly” without “unnecessary delays from the election process.” In addition to the recission of four provisions above, the changes included the following:

• Pre-election hearings will take place eight calendar days from service of the Notice of Hearing (10 days earlier than the 14-business-day requirement under the 2019 rule).
• Regional directors “can postpone a pre-election hearing for up to 2 business days upon request of a party showing special circumstances and for more than 2 business days upon request of a party showing extraordinary circumstances,” reducing the discretion to postpone pre-election hearings as compared with the 2019 rule.
• The nonpetitioning party’s statement of position will be due seven calendar days after service of the Notice of Hearing (three days earlier than the eight-business-day requirement under the 2019 rule).
• Regional directors “can postpone the due date for the filing of a Statement of Position for up to 2 business days upon request of a party showing special circumstances and for more than 2 business days upon request of a party showing extraordinary circumstances,” reducing the discretion to postpone the statement of position due date as compared with the 2019 rule.
• Petitioning parties will respond orally to the nonpetitioning party’s Statement of Position at the start of the pre-election hearing, whereas they would file and serve a responsive written statement of position three business days prior to the pre-election hearing under the 2019 rule.
• Employers must post and distribute the notice of petition for election two days after service of the Notice of Hearing, which will be due three days earlier than the five-business-day requirement under the 2019 rule.
• Parties will have the opportunity for oral argument before the close of a representation hearing, and written briefs are allowed only where the regional director or hearing officer finds them to be necessary. Under the 2019 rule, parties had at least five business days following the close of hearings to file a brief.
• The regional directors “will ordinarily specify” the details of election when they distribute the notice of election, rather than the permissive language (“Regional directors may”) prescribed by the 2019 rule.

The practical impact of these changes is that employers will have less time to respond to representation petitions.

What Comes Next?

The 2023 final rule drives home that the era of Board uncertainty continues.  The Board did not seek public comment before adopting the 2023 final rule. The rule may, as a result, face legal challenges, much like the challenge to the 2019 rule, including whether some of the changes are procedural or substantive under the APA. Employers should be prepared to act immediately upon any petitions for representation received on or after December 26, 2023.

Further, on Friday August 25, 2023, the Board issued its decision in Cemex Construction Materials Pacific (“Cemex”) which announced a new standard that may upend the traditionally preferred secret ballot election process in favor of card check recognition in some instances, and will require employers – rather than unions – to file election petitions in others.  Indeed, in Cemex, the Board announced a new standard concerning bargaining orders if an employer commits an alleged unfair labor practice between the time the petition is filed and when the election takes place.  Cemex also applies retroactively so unions may seek bargaining orders even where the employer has won the election.

It is unclear what if any impact the 2023 final rule will have on representation elections in response to Cemex, but both the 2023 final rule and Cemex decision, particularly when taken together, require immediate response from employers, including:

• Employers should ensure they are aware of all relevant election timelines before a union demands recognition based on signed authorization cards in order to prepare its own petition, or respond to a union petition under the shortened representation election process.
• Employers should consider the importance of educating supervisors and potential voters about the union election process so that employees are knowledgeable about the union organizing process.
• Employers should be mindful of ongoing shifts in the law through Board decisions or rulemaking, as the 2023 final rule is unlikely to be the last step in the back-and-forth procedures witnessed over the past decade.

Through its latest rulemaking the Board continues to protect union organizing efforts, and indicates that the policy oscillation evident though Board adjudications is likely to become a fixture of the Board’s rulemaking efforts as well.