NLRB Forges Ahead with New Election Rules Despite Court Order

On May 30, 2020, in response to a lawsuit filed by the AFL-CIO, a federal district court in Washington, D.C. threw out several provisions of the National Labor Relations Board’s new election rules, which were announced in December of 2019 and were scheduled to go into effect on May 31. These new rules rolled back many of the reforms that the Obama-nominated Board implemented in 2014 to streamline the representation-election process and shorten the critical period between the filing of a representation petition and the election, which many employers use to fight the organizing effort with a “union avoidance” campaign.

The NLRB characterized the new rules as “procedural,” which allowed it to sidestep the lengthy notice-and-comment rulemaking process agencies normally must follow when implementing rules that affect the rights of regulated groups, and that the NLRB used when it revised the same procedures in 2014. In ruling for the AFL-CIO, the court agreed that several aspects of the rule changes were not merely procedural and therefore could not go into effect. These included changes that (1) give parties the right to litigate most voter eligibility and inclusion issues before an election; (2) generally bar Regional Directors from scheduling an election less than 20 business days after they issue an order that one occur; (3) mandate that employers furnish the voter list to the parties within five business days after the same order issues (rather than the two business days under the 2014 Rules); (4) require election observers to be members of the voting unit in most circumstances; and, (5) block the issuance of a certification of a union’s bargaining status while a request for review is pending or before the time for filing such a request has passed. The court remanded the surviving provisions of the new rule back to the NLRB for reconsideration. The court then issued a Memorandum Opinion on June 7 setting forth its decision in greater detail, observing that the five rules changes described above have “a significant impact on the employees’ ability to mount a successful campaign for unionization, as is their right under the NLRA,” and that each of the changes “actually (and, apparently, intentionally) impacts the substantive rights of parties.”

Meanwhile, on June 1, the NLRB responded to the court’s decision by declaring that all provisions of its new election rules not specifically thrown out by the court would go into effect immediately. These new procedures include:

Scheduling pre-election hearings not less than 14 business days after the Board issues a notice of hearing;
Requiring posting the notice of election within 5 days instead of 2 days;
Changes in the timeline for serving the non-petitioning party’s statement of position;
Requiring the petitioner to serve a responsive statement of position;
Reinstatement of post-hearing briefs as a matter of right;
Reinstating Regional Director discretion on the timing of a notice of election after the direction of an election;
Impounding ballots while a request for review is pending if filed within 10 days after a Direction of Election issues;
Prohibition on bifurcated requests for review (raising different issues pertaining to a single action through successive requests for review);
Certain changes in formatting for pleadings and other documents; and
Terminology changes and defining days as “business” days.

The Board’s General Counsel also issued a guidance memorandum the same day providing greater detail on the implementation of the new rules in accordance with the Board’s decision.

On June 3, the AFL-CIO filed a motion asking the court to clarify its order in response to the Board’s announcement. The motion sought a requirement that the NLRB to hold an official meeting to reconsider those provisions not expressly vacated by the court’s order and provide affected parties with notice of its decision regarding those provisions and an explanation of its reasoning. The court rejected this argument, however, in its Memorandum Opinion of June 7, so the NLRB’s June 1 guidance remains in effect.

Labor organizations seeking an NLRB-conducted election should be aware that the procedures have changed and may change again as this case continues to work its way through the courts. Individuals and Unions with questions about the NLRB’s new election procedures can contact the labor attorneys at Willig, Williams and Davidson for assistance.

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