On May 30, 2020, a U.S. district court judge issued an order that prevents certain provisions of a new rule governing election procedures from going into effect. However, employers should note that the National Labor Relations Board (NLRB) intends to implement all other portions of the new rule that the court’s order did not address, effective immediately.
The new rule, which the NLRB issued at the end of 2019, amended procedural revisions from 2014 related to the processing of union representation cases. Critics of the 2014 revisions argued that those revisions truncated the time frame between the filing of a petition and the preelection hearing, making it difficult to simultaneously meet various obligations triggered by the filing while also preparing for the hearing.
In many respects, the new rule marks a return to pre-2014 procedures and practices, and provides parties with additional time in multiple areas of the election process.
In March 2020, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) sued the NLRB and sought to have the new rule set aside. The AFL-CIO alleged that the changes in the new rule were substantive rather than merely procedural – an important distinction that meant the NLRB had violated the Administrative Procedure Act by issuing the new rule without prior notice and comment.
On May 30, 2020, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia issued an order granting the AFL-CIO’s request to enjoin implementation of certain provisions of the new rule. Judge Jackson agreed with the AFL-CIO that certain portions of the new rule were substantive, not procedural, and required notice-and-comment rulemaking.
As a result of the court’s order, the following five changes in the new rule will not go into effect:
- Reinstitution of preelection hearings for litigating eligibility issues. The new rule would have given the parties the ability to litigate eligibility and inclusion issues before the election. Under prior rules, these issues did not need to be litigated before an election was conducted.
- Timing of the date of election. The new rule would have provided that, unless a waiver was filed, the regional director should not schedule an election before the twentieth business day after the date of the direction of election. The prior rules simply stated that the regional director “shall schedule the election for the earliest date practicable.”
- Voter list timing. The new rule would have given an employer five business days to furnish the required voter list following the issuance of the direction of election. Under the prior rule, an employer had only two business days to provide the list.
- Election observer eligibility. The new rule would have provided guidance on the selection of election observers – specifically, that a party should select a current member of the voting unit or, if no such individual was available, select a current nonsupervisory employee. The prior rules only provided that the parties could be represented by observers.
- Timing of regional director certification of representatives. Under the new rule, the regional director would no longer certify the results of an election if a request for review was pending, or if the deadline to file a request for review had passed. Under the prior rules, regional directors were required to certify election results despite the pendency or possibility of a request for review.
On June 1, 2020, the NLRB announced that it would implement all other portions of the new rule that were not impacted by the court’s ruling, effective immediately. These include:
- Scheduling the hearing at least 14 days from issuance of the notice of hearing;
- Posting the notice of election within five days instead of two days;
- Changing the timeline for serving the non-petitioning party’s statement of position from seven calendar days after service of the notice of hearing to eight business days after service of the notice of hearing;
- Requiring petitioner to serve a responsive statement of position;
- Reinstating post-hearing briefs;
- Reinstating regional director discretion on the timing of a notice of election after the direction of an election;
- Changing ballot impoundment procedures when a request for review is pending;
- Prohibiting bifurcated requests for review;
- Adopting certain formatting changes for pleadings and other documents; and
- Changing certain terminology and defining days as “business” days.
Judge Jackson is expected to issue a full memorandum opinion soon, which the NLRB intends to appeal. In the meantime, employers should be prepared to immediately comply with all of the other provisions of the new rule that were not affected by the district court’s order.