Act Fast: National Labor Relations Board Guidance Memorandum Serves as a Reminder of Shortened Election Timeframe

On December 8, 2023, National Labor Relations Board (the “Board”) General Counsel Jennifer Abruzzo issued a Guidance Memorandum (“GC 24-02”) describing the practical impact of the 2023 final rule amending federal regulations that govern representation election procedures.

As previously reported, the final rule is effective December 26, 2023. While GC 24-02 provides some level of insight into the rationale and procedure contemplated by the 2023 final rule, it mostly serves as a reminder that employers will now have significantly less time to respond to election petitions. Here are the highlights:

  • Deadlines and Scheduling: Pre-Election Hearings and Statements of Position. Pre-election hearings will generally occur eight calendar days after a petition is filed, and non-petitioning party Statements of Position will be due seven calendar days after the petition is filed.
  • Extensions. Regional Directors have discretion to postpone hearings and the deadline for a party’s Statement of Position up to two days where a party can show “special circumstances.” Extensions greater than two days will require a party show “extraordinary circumstances.” Petitioners can present an oral Responsive Statement of Position at the open of the hearing in lieu of a written submission.
  • Notice of Petition. Notices of Petition must be posted and distributed within two business days after service of the Notice of Hearing.
  • Hearing Content. Hearings will be limited to only issues necessary to determine whether an election should be conducted. Litigation of eligibility and inclusion issues will generally be deferred to the post-election stage.
  • Briefing. Regional Directors and Hearing Officers can give “special permission” for parties to file pre- and post-election hearing briefs at their discretion. GC 24-02 suggests that briefing will be considered appropriate in a “rare complex case.”
  • Elections. Where the Regional Director directs an election, the direction ordinarily will specify the type, date(s), time(s), and location(s) of the election and the eligibility period. Elections must be scheduled for “the earliest date practicable” after issuance of a decision and direction of election.

In light of these changes, employers should be prepared to act immediately upon any petitions for representation received or filed on or after December 26, 2023.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.