NLRB Establishes Faster Time Frame for Union Elections

A new federal rule requiring quicker union elections will take effect on Dec. 26.

The National Labor Relations Board (NLRB) issued the final rule on Aug. 24 to shorten the union election time frame that was established four years ago. The new rule requires union elections to be held at “the earliest date practicable.” It eliminates a 20-day waiting period incorporated in the previous rule.

Disputes over eligibility to vote in a union election do not need to be litigated or resolved prior to an election, according to a recent memorandum from NLRB General Counsel Jennifer Abruzzo. That means disagreements over whether certain individuals qualify as supervisors may not be litigated until after a union vote is held.

Under the new rule, pre-election hearings will be scheduled to start eight calendar days after the union petition filing with the NLRB. That’s 10 calendar days sooner than under the NLRB’s 2019 election rule. A nonpetitioning party’s written response will be due seven calendar days after the petition filing, which is three calendar days sooner than under the 2019 rule. Employers must post and distribute a notice of petition for election within two business days after receiving the notice of hearing, rather than five business days under the 2019 rule.

Preparation

“The reality is, for most employers, it will be too late to respond to a union campaign once an NLRB election petition is filed or demand for recognition is made,” said John Ring, an attorney with Morgan Lewis in Washington, D.C., and former NLRB chair. “Employers need to do the preparation work now—ahead of any sign of union activity.”

The new rule “gives companies less time to be aware and respond to a union organizing effort and make sure employees are getting both sides of the story, not just hearing from the union,” said Andrew Herman, an attorney with Blank Rome in Philadelphia.

Employers don’t have to wait for a union petition to act. Before any union petition is filed, employers should try to be aware of any employee discontent and evaluate their workplace policies for compliance with the National Labor Relations Act (NLRA), said Joshua Fox, an attorney with Proskauer in New York City.

Good communication is one way to address employee dissatisfaction and prevent union drives. “You want to make sure you’re improving communications with employees,” said Kelly Kindig, an attorney with Cozen O’Connor in Philadelphia. That means encouraging workers to speak up about problems and taking their concerns seriously, she added.

Supervisors Excluded from NLRA’s Coverage

Generally, supervisors are not covered by the NLRA and cannot join a union or be included in the bargaining unit, but it’s not always clear who is a supervisor. The NLRA defines a supervisor as someone who has authority to hire, fire, transfer, lay off, promote, reward or discipline other employees.

“Supervisors are often the front-line messengers for employers, and if there’s a question about who is and who is not a supervisor, it can put an employer in a difficult position,” Ring said. “Employers should take steps now to firm up supervisor status for NLRB purposes and make sure there is confidence about who is considered a supervisor in the organization.”