December 18, 2023

How the NLRB Stole Christmas: Expedited Representation Election Cases!

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Sherman & Howard L.L.C.

In late December, the National Labor Relations Board (“NLRB”) 2023 Election Rule will take effect, expediting the timeline for processing representation election cases. The 2023 Election Rule removes certain changes implemented by the Trump-era 2019 Election Rule, in many instances reverting back to the quicker 2014 Election Rule timeline. Under the new rule, the time between petition filing to election to resolution of post-election litigation is extremely truncated, making it that much harder for employers to educate their workers on the downsides of union representation. Below are the most relevant changes.

Representation Election (“RM”) Stage	2023 Election Rule Timeline
Posting and Distribution of Notice of Petition for Election	Employers must post and distribute the Notice of Petition for Election within two business days after service. See §102.63(a)(2)
Scheduling of Pre-Election Hearing	Eight calendar days after petition filing. See §102.63(a)(1)
Postponement of Pre-Election Hearing	Regional Director (“RD”) may postpone for up to two business days upon request and showing of special circumstances and two more upon request and showing of extraordinary circumstances. See §102.63(a)(1)
Due Date for Non-Petitioning Party’s Statement of Position	Seven calendar days after petition filing. See §102.63(b)
Postponement of Position Statement	RD may postpone for up to two business days upon request and showing of special circumstances and two more upon request and showing of extraordinary circumstances. See §102.63(b)
Responsive Position Statement	Petitioner permitted to respond orally at start of pre-election hearing. See §102.66(b)
Litigation of Eligibility and Inclusion Issues	Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. All other issues will generally be deferred to post-election stage. See §102.64(a)
Briefing Following Pre- and Post-election Hearings	Written briefs will only be allowed with the permission of the RD (pre-election hearing) or the Hearing Officer (post-election hearing). §102.66(h); See §102.69(c)(1)(iii)
Specification of Election Details in Decision and Direction of Election; Notice of Election	RDs will ordinarily specify the election details (the type/date/time/location etc. and the eligibility period) in the decision and direction of election and will ordinarily simultaneously transmit the Notice of Election with the same. See §102.67(b)
Elimination of the 20-Business Day Waiting Period Between Issuance of the Decision and Direction of Election and the Election	RDs will schedule elections for “the earliest date practicable” after issuance of a decision and direction of election. See §102.67(b)

Employers are reminded that, under Cemex Construction Materials Pacific, LLC, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election. Employers are well advised to immediately contact experienced labor counsel when their workforce begins to organize—the timelines are much faster than one might imagine!

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.