“Labor Law Update: New Union Election Rules Partially Overturned by New Court Decision”

Obermayer Rebmann Maxwell & Hippel LLP

Back in December 2019, HRLegalist blogged about the National Labor Relations Board’s (“NLRB”) new union election rules. This set of rules was a sweeping series of reforms that sought to slow down the union elections process, seeking to offset some of the injurious effects of the “Ambush Election” rules that were dealt to employers.

These employer-friendly rule changes by the NLRB were subsequently challenged in the U.S. District Court for the District of Columbia by the AFL-CIO. On May 30, 2020, District Judge Kentaji Brown Jackson released her order, holding that the challenged-portions of the new NLRB election rules impacted substantive rights, and were not merely procedural, in nature, and were thus improperly implemented without providing the public a “notice-and-comment” period in which feedback could be provided before implementation—a requirement under the Administrative Procedure Act. Accordingly, the Court ruled that the substantive portions of the rules were unlawful and invalid.  The remaining unchallenged provisions, however, will go into effect immediately. Some of the remaining provisions that are immediately enforceable are:

  1. New Rule: The pre-election hearing will generally be scheduled 14 business days from issuance of the Notice of Hearing.
    • Old Rule: The pre-election hearing would have had to have been scheduled at least 8 calendar days from the issuance of the Notice of Hearing.
  2. New Rule: The Notice of Election must be posted within 5 business days after service of the Notice of Hearing.
    • OldRule: The Notice of Election would have had to have been posted within 2 business days.
  3. New Rule: The non-petitioning party (typically, the employer in a representation case, and the union in a decertification or deauthorization case) must file a written Statement of Position by noon 8 business after service of the Notice of Hearing. Regional Directors will also have greater discretion to grant extensions.
    • Old Rule: The non-petitioning party would have had to file a written Statement of Position by noon 7 calendar days after service of the Notice of Hearing.
  4. New Rule: Petitioner must file a written, responsive Statement of Position no later than noon 3 business days before the hearing.
    • Old Rule: Petitioner would have only needed to make a responsive, oral statement at the pre-election hearing.
  5. New Rule: Parties may submit post-hearing briefs within 5 business days of the close of the hearing, with the hearing officer being permitted to extend that time up to 10 days, for good cause.
    • Old Rule: Parties used to have to seek special permission of the Regional Director to submit a post-hearing brief.
  6. New Rule: Defining “days” as “business days.”
    • Old Rule: Lack of consistency on how “days” were defined, between business and calendar days.

Some of the challenged provisions that have been struck down for lack of a “notice-and-comment” period, and thus will not be enforceable at this time, include:

  1. Reinstitution of pre-election hearings for litigating eligibility issues:
    • NLRB “New Rule” Struck Down by the Court: Most voter eligibility and inclusion issues could be litigated at a pre-election hearing.
    • Old Enforceable Rule: Most voter eligibility and inclusion issues will not be litigated at a pre-election hearing.
  2. Timing of the date of election:
    • NLRB “New Rule” Struck Down by the Court: A Regional Director normally will not be able to schedule an election sooner than 20 business days from the date of the Direction of Election. 
    • Old Enforceable Rule: Elections can be held as soon as 12 days after the Direction of Election.
  3. Voter list timing:
    • NLRB “New Rule” Struck Down by the Court: An Employer must provide a voter eligibility list within 5 business days following the issuance of a Direction of Election.
    • Old Enforceable Rule: An Employer must provide a voter eligibility list within 2 business days from the date of the Notice of Direction of Election.
  4. Election observer eligibility:
    • NLRB “New Rule” Struck Down by the Court: Parties would be required to select election observers who are current members of the voting unit, wherever possible. If no such individual was available, a current nonsupervisory employee would be selected.
    • Old Enforceable Rule: Fewer restrictions on who may be selected to serve as an observer.
  5. Timing of Regional Director Certification of Elections:
    • NLRB “New Rule” Struck Down by the Court: The Regional Director would no longer issue certifications following elections if a request for review is pending or before the time has passed during which a request for review could be filed.
    • Old Enforceable Rule: Regional Directors are required to issue certifications following elections, despite the pendency or possibility of a request for review. 

A more comprehensive outline of these new changes following Judge Brown Jackson’s Order can be found in an NLRB General Counsel’s memo here.

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