Part 1 of our analysis of the NLRB’s Final Rule on representation elections is here.
Another potentially significant feature of the new regulations on union representation elections issued by the National Labor Relations Board is the timing of elections.
Like the current “quickie” election rule, the new rule provides that “[t]he Regional Director shall schedule the election for the earliest date practicable.” However, the new rule adds that “unless a waiver is filed, the Regional Director will normally not schedule an election before the 20th business day after the date of the direction of election, to permit the Board to rule on any request for review which may be filed...”
The added language may increase the average time between the direction of election and the election. But not necessarily.
Under the current regulations, two variables affect the timing of the election that the Regional Director must schedule “for the earliest date practicable”: (1) whether the employer provides the voter list (“Excelsior list”) in two days or at a later date, pursuant to the terms of the direction of election, and (2) whether the unions (or non-employer parties) “waive” their right to have the voter list for the full 10-day period before the election. The “two days” and “10 days” have been interpreted by some commentators as a fixed, total “12-day minimum time period” between the direction of election and the election. But that interpretation does not fit all situations. Under the current rule, the time interval can also be more than 12 days, or less. For example, unions frequently waive the 10-day period in order to move things to an election as quickly as possible, which results in a time interval of less than 12 days.
The new rule, by providing for a “normal” interval of 20 business days, may provide employers with more time, on average, to communicate with eligible voters. But the new rule still provides for the possibility of a shorter time interval due to a waiver by either party. Moreover, the use of the term “normally” may create a loophole that would allow Regional Directors to schedule the election in less than 20 business days.
Nonetheless, the new rule may result in a return to a standard with more certainty and more time for employers to communicate with employees, who typically have heard from a union long before the employer even has notice of the petition or organizing.