The NLRB issued a final rule pertaining to its election procedures on August 18, 2023, to become effective December 26, 2023. The new regulation, promulgated without opportunity for comments, sets forth 10 amendments to NLRB procedures, substantially returning those procedures to those in a 2014 rule issued during the Obama Administration. The changes expedite the conducting of the election itself. Thus, a pre-election hearing will generally be scheduled to open eight calendar days from service of the notice of hearing, rather than 14 business days. The rule regarding disputes concerning eligibility to vote or inclusion in an appropriate unit will not be litigated or resolved prior to an election, allowing the election to be held earlier. The NLRB Regional Directors will specify the election details (dates, times and locations of the election, etc.), in the decision and direction of election rather than conveying them in a later-issued notice of election. Finally, and perhaps most importantly, the Regional Directors must schedule elections for "the earliest date practicable" after issuance of the decision following the representation hearing. Management calls the rule the "ambush" election rule because employers have only a couple of weeks or less to campaign and educate voters on election issues.
This article is part of our October 2023 Newsletter.
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