In December 2019 the National Labor Relations Board (“NLRB”) issued a final rule to amend the procedures to be followed in union representation cases. The NLRB said the purpose of the final rule was “to permit parties additional time to comply with various pre-election requirements instituted in 2015, to clarify and reinstate some procedures that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues prior to an election, and to make several other changes the Board deems to be appropriate policy choices that better balance the interest in the expeditious processing of questions of representation with the efficient, fair, and accurate resolution of questions of representation.”
The final rule, which was set to go into effect June 1, 2020, reversed many aspects of the Obama-era “quickie” election rules.
Some of the changes to be made by the final rule were:
- The timelines were extended for providing voter lists, having pre-election hearings, and scheduling elections, which collectively lengthened the time between the union filing a petition and a vote.
- Disputes concerning unit scope and voter eligibility—including issues of supervisory status—were added to the issues that will normally be litigated at the pre-election hearing and resolved by the regional director before an election is directed.
- A regional director’s ability to count ballots was delayed when a request for review of a direction of election has not been ruled upon.
- Observers would be limited to a current member of the voting unit or a current nonsupervisory employee.
- The regional director would no longer certify the results of an election if a request for review is pending or before the time has passed during which a request for review could be filed.
You can read the final rule here.
The AFL-CIO filed a lawsuit to block implementation of the final rule, arguing that it made substantive changes to legal rights, and it was implemented without public notice and comment in violation of the the Administrative Procedures Act (“APA”). The NLRB argued that the final rule did not change substantive rights, but pertained to agency procedures that were not subject to public notice and comment requirements
On May 30, 2020, U.S. District Court Judge Ketanji Brown Jackson issued an order finding that some portions of the final rule “are not procedural rules exempted from the notice-and-comment rule making requirements of the APA.” The judge’s order was very brief, and a Memorandum Opinion will be issued soon providing more detail. Although the court did not vacate the entire final rule, its ruling effectively prevented the final rule from going into effect on June 1. The judge remanded the matter to the NLRB to reconsider in light of the court’s ruling.
For labor relations assistance, please contact the attorneys at Kollman & Saucier, P.A. today by calling (410) 727-4300.