NLRB Updates Election Rule Changes to Comply with Court Order

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A federal district court recently struck down certain changes to union representation election rules, but the National Labor Relations Board (NLRB) said it will implement the remaining rule changes that are unaffected by the court's order.

The NLRB published a final rule in December 2019 making major modifications to union election procedures and significantly lengthening the time between an NLRB regional director's order that there be an election and the election. The rule was supposed to take effect April 16 but was delayed to May 31 due to the coronavirus pandemic.

Although most of the changes remain intact, the court's order blocked five key provisions highlighted by the AFL-CIO in a legal challenge to the rule.

The federation of labor unions argued that the 2019 election rule was issued without notice and without any opportunity for the public to comment and created additional barriers for parties seeking an election supervised by the NLRB.

Kyllan Kershaw, an attorney with Seyfarth Shaw in Atlanta who represents employers, said the decision to block certain provisions of the 2019 rule is "a disappointment to those that were anticipating a completely revised set of election rules." 

During the coronavirus pandemic, she said, "a process that provides the parties with a more reasonable timeline is particularly important given the difficulties in campaigning."

Background

The NLRB had made substantial revisions to union election procedures in 2014 that reduced the time between an NLRB regional director's order that there be an election and the election. In 2014, the board said elections should be held as soon as possible, whereas prior to that, elections took place about 25 to 30 days after the regional director's order.

In support of the 2014 rule, the AFL-CIO said that the primary purpose of the amendments was "to remove unnecessary barriers to the fair and expeditious processing of representation cases."

The current NLRB general counsel, Peter Robb, however, said the 2014 changes "imposed a variety of new procedural requirements on the parties and significantly contracted the timeline between the filing of a petition and the election." But rather than completely rescinding the 2014 rules, he said, the 2019 amendments incorporated "targeted revisions designed to address specific, identified concerns and problems."

Among other changes, the 2019 final rule instructed the NLRB regional director generally to not schedule an election before the 20th business day after issuing a "direction of election."

[SHRM members-only toolkit: Preparing for the Possibility of Union Organizing]

"The rule would have significantly changed the 2014 'quickie election' rules, including balancing pre-election burdens between employers and unions and conclusively resolving disputes over issues like voter eligibility, before conducting an election," said Jason Stanevich and Kevin Burke, attorneys with Littler in New Haven, Conn., and Boston, respectively.

Blocked Provisions

On May 30, the U.S. District Court for the District of Columbia blocked five provisions of the new rule. Kershaw noted that the stuck-down provisions would have:

  • Provided employers an increased ability to challenge and litigate certain issues prior to an election.
  • Increased the length of time between the filing of the petition and the date of the election.
  • Added to the time period for an employer to serve a voter list.
  • Limited who can serve as an election observer.
  • Delayed certification of election results if a request for review is pending or may still be timely filed.

The court found that these provisions were substantive, rather than procedural, and were therefore subject to a public notice and comment period under the Administrative Procedure Act. Judge Ketanji Brown Jackson noted that substantive rules generally grant rights and impose obligations, produce "significant effects on private interests," "foreclose alternate courses of action," or "conclusively bind … the affected private parties."

The NLRB intends to appeal the decision. "The board continues to believe that it followed all legal requirements in issuing the December 2019 amendments to its procedural rules," according to a board announcement.

"It is uncertain whether or when an appellate decision might affirm the order, or alternatively, overturn the order and allow full implementation of the challenged portions of the rule," Stanevich and Burke observed.

Majority of Provisions Remain

Although the court blocked five provisions of the December 2019 amendments, the decision leaves the majority of the rule intact. Accordingly, the NLRB said unaffected changes took effect immediately on May 31, including: 

  • Scheduling a hearing at least 14 days (rather than eight days) from issuance of the notice of hearing.
  • Posting the notice of election within five days instead of two days.
  • Changes in the timeline for serving the nonpetitioning party's statement of position.
  • Requiring the petitioner to serve a responsive statement of position.
  • Reinstating post-hearing briefs.
  • Reinstating discretion to the regional director on the timing of a notice of election after the direction of an election.
  • Ballot impoundment procedures when a request for review is pending.
  • A prohibition on bifurcated requests for review.
  • Certain changes in formatting for pleadings and other documents.
  • Terminology changes and defining days as "business" days. 

Following the court's order, Robb issued a guidance memorandum to regional directors on implementing the rule. "It is my sincere belief that this guideline memorandum will effectuate the goal of assuring the public of a fair election result within a reasonable period of time from the filing of the petition," he said.

Kershaw suggested that employers continue to be proactive to maintain positive employee relations, stay in front of workplace issues and have plans in place for union-organizing efforts. 

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