NLRB Returns to its Prior “Ambush” Election Rules

By Kara Maciel and Samuel Rose

The National Labor Relations Board (“NLRB”) has issued its 2023 Rule related to union representation elections. Representation petitions can be filed by employees, unions, or employers and ask the NLRB to conduct an election to determine whether employees wish to be represented by a union in collective bargaining.

The 2023 Rule reverses many of the provisions in the NLRB’s 2019 Rule which extended the timeline that the parties had to conduct an election. The 2019 Rule gave rise to extensive litigation resulting in the U.S. Court of Appeals for D.C. striking down significant portions of the rule. The NLRB had already rescinded the struck down provisions of the 2019 Rule, but the 2023 Rule makes additional changes, essentially returning the election process to the 2014 Rule. The NLRB says that the 2023 Rule “will meaningfully reduce the time it takes to get from petition to election in contested elections and will expedite the resolution of any post-election litigation.”

The 2023 Rule includes numerous differences from the 2019 Rule, including:

1. Pre-election hearings will generally open approximately 10 days earlier, with limited discretion for postponement.
2. The Employer’s response to the petition will be due approximately 3 days earlier, with limited discretion for postponement.
3. The Union can now respond to the Employer’s position orally at the pre-election hearing, rather than in writing.
4. Only issues necessary to determine whether an election will be conducted will be litigated at the pre-election hearing. Eligibility and inclusion issues will be saved for the post-election stage.
5. All parties will have an opportunity for oral argument before the close of the hearing. Written briefs will only be allowed if the Regional Director or hearing officer determines they are necessary.
6. Elections will be scheduled as soon as practicable after decision instead of observing the 20-business day waiting period from the 2019 Rule.

The new final rule will take effect on December 26, 2023. In the meantime, it is essential that employers take immediate action, including:

1. Familiarizing themselves with new election timelines.
2. Educating and training supervisors on new election rules.
3. Continue to implement best practices in the workplace to avoid a Union filing for a petition for election.