New Representation Case Rules Outreach Event

On May 27, 2020, the Manhattan Region of the National Labor Relations Board hosted an Outreach training session via teleconference, to answer questions and discuss the new modifications to the Agency’s 2014 amendments to its representation case procedures.  The modifications, scheduled to take effect May 31, 2020, include clarifications to procedures prior to an election that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues.  The changes also permit parties additional time to comply with the various pre-election requirements instituted in 2014.  The session was widely attended by over 70 practitioners, with larger firms conferencing in as groups.  Director Walsh, Acting Assistant Regional Director Christen Ritter, and Board agents Nicole Lancia, Joseph Luhrs, and Nicole Oliver discussed the Board’s modifications to the 2014 amendments.  Director Walsh began the session by introducing the panel, explaining the reasons why the Board issued the Final Rule, and describing the dissenting opinion.  The Director also explained that the rules were then being challenged in a lawsuit filed by the AFL-CIO seeking to enjoin the Final Rules.  He then summarized the fifteen main amendments to the Rules.  Joe Luhrs provided a more studied synopsis of the Rules and explored the selection of election observers; Nicole Oliver examined the Statement of Position, Responsive Statement of Position and Preclusion; Christen Ritter analyzed the impact on pre-election hearings and Decisions; and Nicole Lancia dissected the new options covering when to file Requests for Review and Certifications.  The panel members then welcomed and responded to many questions from listeners at the conclusion of the one-hour training presentation.

On May 31, 2020 the National Labor Relations Board implemented in full the following rule changes:

• Scheduling the hearing at least 14 days from issuance of the notice of hearing;
• Posting the notice of election within 5 days instead of 2 days;
• Changes in timeline for serving the non-petitioning party’s statement of position;
• Requiring petitioner to serve a responsive statement of position;
• Reinstatement of Post-Hearing Briefs;
• Reinstating Regional Director discretion on the timing of a notice of election after the direction of an election;
• Ballot impoundment procedures when a request for review is pending;
• Prohibition on bifurcated requests for review;
• Certain changes in formatting for pleadings and other documents; and
• Terminology changes and defining days as “business” days. 

The General Counsel has issued a guidance memorandum regarding implementation of the rule. GC 20-07.

The remaining five provisions of the December 2019 amendments are under review per a recent U.S. District Court order.  These are:

• Reinstitution of pre-election hearings for litigating eligibility issues;
• Timing of the date of election;
• Voter list timing;
• Election observer eligibility; and
• Timing of Regional Director certification of representatives.