As recently discussed, on December 26, 2023, representation case procedures will change under a rule published by the National Labor Relations Board (“NLRB” or “Board”) in August earlier this year.

Background:  When a union files a petition to represent a group of employees, the Board requires specific action from both the employer and the union prior to proceeding to an election, and may hold hearings to resolve disputed legal issues prior to the commencement of an election.  The upcoming change reverts representation case procedures to the Board’s “quickie” election rules initially implemented in 2014, which will significantly accelerate the pre-election timeline and remove potential pre-election litigation over any unit scope or unit inclusion issues.

In a guidance memorandum published last week, NLRB General Counsel Jennifer Abruzzo detailed the differences between the 2023 Election Rule and the most recent reiteration, the 2019 Election Rule, providing further insight into how representation cases will proceed moving forward.  Since the 2023 Rule restores provisions of the 2014 Rule, the GC indicated that the guidance memorandum published with respect to that rule in 2015 will provide “valuable guidance relevant to the 2023 Election Rule.”  Overall, she stated, the 2023 Election Rule will “meaningfully reduce the time from petition filing to election.”

In our previous post, we detailed the most significant aspects of the upcoming changes, including the exclusion of individual eligibility and inclusion issues from a potential pre-election hearing, which means those issues will now be litigated, if at all, after an election is conducted rather than before.  Additional changes are summarized again below:

Rule TopicCurrent NLRB Rule
(Applicable untilDecember 25, 2023)
New NLRB Rule
(Effective on December 26, 2023)
Scheduling of Pre-Election Hearings14 business days from when an employer receives a Notice of Hearing8 business days from when an employer receives a Notice of Hearing
Postponement of Pre-Election Hearing and Employer’s Position StatementRegional Directors had discretion to postpone a hearing for an unlimited amount of time2 business days if a party demonstrates “special circumstances” and more than 2 business if a party demonstrates “extraordinary circumstances”
Submission of Employer’s Statement of PositionBy noon 8 business days (or 10 calendar days) after employer receives a Notice of HearingBy noon the day before the hearing (i.e., usually 7 calendar days after being served a Notice of Hearing)
Responsive Statement of Position3 business days before the pre-election hearingOrally at the start of the hearing
Posting of Notice of Petition For Election5 business days after employer receives a Notice of Hearing2 business days after receiving a Notice of Hearing
Post-Hearing BriefsUp to 5 business days after the hearing, with an extension of 10 additional business days upon a showing of good causeOnly with the regional director’s special permission
Timing Between Decision and Direction of Election (“DDE”) and Notice of ElectionRegional Directors had discretion to convey election details in a DDE or in a later-issued when Notice of ElectionRegional Directors should specify the election details in the DDE and simultaneously transmit the Notice of Election with the DDE
Scheduling of an ElectionElections had to be scheduled for “the earliest date practicable” but there had to be a 20-business day waiting period between a DDE and the electionNo 20 business-day waiting period and elections must now be scheduled for “the earliest date practicable”

Takeaways:  The GC Memo provides a good opportunity to re-emphasize that employers should pay close attention to these changes.  In just a few weeks, any employer facing a representation petition will be dealing with a much shorter clock in the run-up to an election, which can limit employers’ ability to publicly message any opposition in response to a union campaign.

Moreover, eliminating pre-election litigation concerning disputes over individuals’ eligibility to vote or inclusion in an appropriate unit before an election will impact the timing of an election, eliminating the potentially time-consuming pre-election hearing and Regional Director’s deliberation and issuance of an opinion.  Prior to the 2023 Rule, this process had taken weeks or even months, depending on the case.  In addition, employers will need to be more thoughtful about how they communicate during an election campaign and how they bargain an initial contract, given the potential uncertainty of whether certain employees are included in the unit or not.

In light of the new 2023 Election Rule and the Cemex decision, we expect an increase in election petitions after the Christmas holiday and into 2024. 

We continue to be on top of these developments, and we are here to discuss if you have questions about navigating this difficult environment.

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Alexander J. Blutman Alexander J. Blutman

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment

Alexander J. Blutman is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

Alex earned his J.D. cum laude from Harvard Law School, where he was Co-Managing Editor of the Harvard Journal of Sports & Entertainment Law and Co-Producer of the Harvard Law School Parody. While at Harvard, Alex spent time as a legal intern with the UNLV Athletics Department, Special Olympics International, and the National Football League.

Prior to law school, Alex worked as a paralegal at an Am Law 100 law firm. He graduated from Duke University, where he served as a student-manager for the men’s basketball team.