Status

Despite being litigated for years, the Biden administration’s NLRB has revived controversial policy from the Obama era in the form of its Representation-Case Procedures final rule. The direct final rule, issued without notice and the opportunity to comment, essentially restores provisions of the “ambush” election rule of 2014 and rescinds the remaining ABC-supported provisions of the 2019 final rule. The rule will apply to representation petitions filed on or after Dec. 26, 2023, and employers will have less time to respond to representation petitions.

To learn about the changes included in the 2023 final rule, see ABC’s Newsline article on Sept. 5. See also the NLRB comparison chart of prior and new Representation Case Procedures as well as the fact sheet for more information. Additionally, ABC’s general counsel Littler Mendelson has prepared an analysis of the final rule.

ABC vehemently opposed the 2014 rule and filed a legal challenge against it. 

Desired Outcome

The Board’s efforts to again reduce the amount of time between when a union files a representation petition and an election takes place imposes unnecessary urgency on employers, leaving them susceptible to violations of their due process rights and deprives employees of the time needed to become fully informed before deciding whether or not to unionize.

Ultimately, the rule infringes on the rights of employers and employees to a fair pre-election process and will have a particularly adverse impact on small construction firms, which typically do not employ legal counsel.