On December 13, 2019, the National Labor Relations Board finalized a new rule reversing some of the most problematic provisions of the “Ambush Election Regulations” that went into effect under former President Obama in 2015. While the new regulations did not rescind all of the Obama amendments, the modifications will be of great value to Employers in responding to Union Election Petitions and dealing with the vexing issue of Union Representation.

Here are some of the changes:

1. Post Election Hearing:

The “Ambush Election Regulations” attempted to speed up the entire process of the scheduling of Union Election by shortening the time between the date on which the Union filed a Petition and the date on which the Pre-Election Hearing was scheduled. Those regulations required the Pre-Election Hearing to be generally scheduled within eight (8) calendar days of a Petition’s filing. The new rules will require the Pre-Election Hearing to be scheduled to open fourteen (14) business days from the date of the filing of the Petition.

2. Statement of Position:

Under the “Ambush Election Regulations”, it was the obligation of an Employer to file a Statement of Position with regard to issues in dispute dealing with the Petitioned For Unit by noon on the day before the scheduled date of Hearing. The new rules will provide the Non-Petitioning Party (usually the Employer) eight (8) business days after the service of Notice of Hearing in which to prepare, file and serve the Position Statement. In addition, for the very first time, the Petitioning Party (usually the Union) will have to file its Statement of Position responding to the issues raised by the Employer within three (3) business days of the Hearing.

3. Resolution of Disputed Issues-Pre-Election:

Under the “Ambush Election Rules”, the resolution of disputes over the unit scope and voter eligibility were delayed until after the Election was held. In essence, individuals were allowed to vote as challenged voters and a decision with regard to their eligibility was to be resolved only if the challenged voters ballots/votes could affect the outcome of the Election. Under the revised rules, these issues will now be litigated pre-election and resolved at the Regional Director’s level before an Election is directed. It still will be possible for the parties to agree to allow some people to vote as challenged voters, but this would be by mutual agreement and not forced on the Employer.

4. Date of Election:

Under the “Ambush Election Regulations”, Regional Directors of the NLRB were required to schedule an Election at the earliest date practicable and, this usually meant within twenty-five (25) calendar days from the date the Petition was filed. Under the new rules, absent agreement by the parties, an Election will not be scheduled before the twentieth (20^th) business day after the date of the issuance of a Direction of Election.

5. Providing of Voters List:

Under the “Ambush Election Regulations”, a list would have to be provided of eligible voters no later than two (2) business days after the Direction of an Election and, the Employer was required to furnish not only the Employee Name and Home Address of each Voter but also to provide Home Phone Numbers, Cell Phone Numbers and Personal Email Addresses and turn this information directly over to the Union. Under the new rules, an Employer will now have five (5) business days to furnish the Voter List to the NLRB and the Union, but will still have to provide that list with the Name, Home Address, Home Phone Number, Cellular Phone Number, Email Address and other pertinent identifiers (Shift, Job Classification).

6. Certification of Election Results:

Under the “Ambush Election Regulations”, Regional Directors will be required to issue a Certification Results of an Election in which the Union won even if the Employer was still appealing issues that could result in the Union Election being set aside. These scenarios usually arose on a filing of a Request For Review of the Region’s Decision with the Board. Under the new rules, Regional Directors will no longer be able to certify the results of an Election while such an appeal is pending or while the Employer still has time to file a Request For Review. This will prevent the Employer from being required to bargain while a Request For Review is pending.

These new Election Rules will become effective One-Hundred Twenty (120) calendar days after publication in the Federal Register. Obviously, these new Election Rules will again even the playing field for an Employer and give the Employer sufficient time in which to set forth its position on unionization to the Employee Compliment. It’s about time Santa Claus did give a present to Employers!

Questions? Contact attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com