The National Labor Relations Board (NLRB or Board) has implemented changes to its election rules, but in the near term, the new procedures are not completely what the Board – or employers – envisioned.
The NLRB has been busy, which has included two recent sets of changes in the Board’s union representation election regulations. On December 18, 2019, the Board published a broad-based final rule changing many election procedures and providing more time for pre-election campaigning. The Board has now implemented some of these changes, which were scheduled to take effect on June 1. However, on May 30, some of the Board’s amendments were struck down by Judge Ketanji Brown Jackson of the US District Court for the District of Columbia. The court determined that certain parts of the final rule did not “qualify as procedural rules” and thus “were promulgated unlawfully and must be set aside.”
On April 1, 2020, the NLRB also published a more narrow three-part set of election-related regulations, as part of what the Board calls its “election protection rule.” This rule, unlike the more broad-based election changes, had been preceded by issuance of a proposed rule and the Board’s consideration of public comments. These “election protection” changes are currently scheduled to take effect July 31, 2020.
The Board announced the amendments to its representation case procedures by publishing a final rule in the Federal Register on December 18, 2019. The amendments were designed “to permit parties additional time to comply with various pre-election requirements” and to respond to concerns emanating from the Board’s 2014 changes to the representation procedures (sometimes referred to as the “quickie” election rules), which the Board majority believed had come at the expense of other relevant interests, such as efficiency, fair and accurate voting, transparency, uniformity, certainty, and finality. Because the Board viewed the final rule as containing mere procedural changes to the representation case procedures, it did not provide notice or seek public comment prior to publishing the rule in the Federal Register.
On March 6, 2020, the AFL-CIO filed a Complaint for Declaratory and Injunctive Relief in the US District Court for the District of Columbia, seeking to enjoin the Board from implementing and enforcing the final rule, which was scheduled to take effect on April 16, 2020. The AFL-CIO argued, in part, that certain portions of the final rule, discussed below, were not “procedural rules” and that the Board therefore erred by promulgating the final rule without engaging in notice-and-comment rulemaking. Following initiation of the AFL-CIO’s lawsuit, the Board agreed, at the court’s request, to suspend the effective date of the final rule until June 1, 2020.
On May 30, 2020, after reviewing the parties’ cross-motions for summary judgment, the court granted summary judgment for the AFL-CIO and set aside the five challenged portions of the final rule. The court essentially held that, given the narrowness of the “procedural rule” exception to the Administrative Procedure Act (APA), the challenged portions were not procedural because they did not deal entirely with internal NLRB operations (as opposed to matters involving parties), nor did they “merely . . . ministerially alter deadlines for parties to express their intentions to the agency.” However, the court emphasized that it was not invalidating the entire final rule. Instead, in a memorandum opinion issued on June 7, 2020, the court found that the AFL-CIO had “only successfully established that certain parts of the 2019 Election Rule should be struck down as unlawful on notice-and-comment grounds” and opted to remand the “matter back to the Board for consideration of how to proceed with respect to both the invalidated and as-yet unchallenged parts of [the final] rule in light of” the court’s ruling and the fact that the AFL-CIO had failed to pursue its remaining arguments on summary judgment.
The court reasoned that it would be improper to mandate any particular manner in which the Board might decide whether or how to implement the remaining portions of the final rule, leaving the door open for the Board to make them effective immediately. The Board took advantage of this opportunity. Following the court’s May 30 order, the Board on June 1 announced – consistent with the final rule’s declaration that all its provisions were severable – that the portions of the final rule left unaffected by the court’s order would remain in place and be implemented immediately.
SOMETHING LOST, SOMETHING GAINED: PARTIAL IMPLEMENTATION OF THE BOARD’S BROAD-BASED ELECTION CHANGES
Consistent with the Board’s actions, NLRB General Counsel Peter Robb issued his own memorandum on June 1 providing guidance for the Board’s regional offices – which are charged with overseeing Board elections and administering the final rule’s new procedural requirements – and highlighting some of the final rule’s most significant changes to the representation case procedures. Among these broad-based changes are the following:
- A (Relatively) Calmer Pre-Election Timeline for Employers. The final rule gives parties additional time to comply with the various pre-election requirements instituted in 2014 by extending the deadlines for (i) the Region’s scheduling of the pre-election hearing upon notice of the hearing (from eight calendar days to 14 business days generally); (ii) the employer’s posting and distribution of the Notice of Petition for Election after service of the notice of hearing (from two business days to five business days); and (iii) the non-petitioning party’s (usually the employer’s) filing and serving of its 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).
- Both Sides File Position Statements, Producing a More Focused Pre-Election Hearing. The NLRB’s 2014 election rule changes only required a written pre-hearing Position Statement from the non-petitioning party (usually the employer). However, the new changes also require the petitioner (usually the union) to file its own pre-hearing Position Statement, which is due three business days before the opening of the hearing. Among other things, the petitioner’s Position Statement must respond in writing to the issues raised in the earlier Position Statement(s). Under the old rule, the petitioner was required only to respond orally at the start of the pre-election hearing.
- A Greater Opportunity for Parties to Argue Their Case. The final rule restores the right of parties to file post-hearing briefs within five business days following both pre-election and post-election hearings (and receive up to 10 additional business days to file for good cause shown). Under the old rule, briefs were permitted only upon special permission of the Regional Director. The final rule also permits oppositions in response to all types of requests for review. In addition, the final rule requires that ballots be impounded when the Board has granted or not ruled on a request for review filed before the election and within 10 business days of the direction of election. Under the old rule, ballots typically were counted immediately following the election, regardless of whether a request for review had been filed.
However, while the Board has signaled that it will appeal the court’s decision to invalidate five of the final rule’s amendments, the General Counsel made clear in his guidance memorandum that the Board will not implement those amendments struck down by the court. Accordingly, the Board will not implement the following parts of the final rule at this time:
- Expanded Pre-Election Hearings. The final rule would have significantly expanded the range of issues that could have been litigated and resolved prior to the election. Specifically, the final rule provided that, rather than deferring disputes over unit scope, supervisory status, and voter eligibility until after the election (the current practice), such disputes were to be litigated at the pre-election hearing and resolved before the Regional Director directed an election.
- Later Election Dates. The final rule also would have extended the critical period – the time between the filing of the representation petition and the election – by instructing Regional Directors not to schedule elections before the 20th business day after the date of the direction of election. Under the current rule, Regional Directors are instructed to schedule elections for the “earliest date practicable.”
- Service of the Voter List. The final rule would have allowed employers five business days to furnish the required voter list after issuance of the direction of election. Employers are given two days to furnish the list under the current rule.
- Election Observers. The final rule would have provided specific guidance as to who parties could select to serve as election observers, limiting the choice to individuals who are current members of the voting unit. The current rule does not provide specific guidance.
- Delayed Certification. The final rule would have prohibited Regional Directors from certifying the results of an election while a timely request for review was pending with the Board. Under the current rule, Regional Directors are required to certify the election results immediately, even if a request for review is pending and potentially could moot the election results.
WHAT COULD HAVE BEEN: THE IMPACT OF THE DISTRICT COURT’S DECISION ON EMPLOYERS
The Board’s decision to implement the surviving portions of the broad-based final election rule will allow employers to enjoy a slightly more relaxed and decompressed critical period following the filing of a petition. To that end, both parties will have significantly more time to prepare for a pre-election hearing (as many as 12 additional calendar days, depending on when the notice of hearing is issued), including to identify issues with the petitioned-for bargaining unit, gather evidence, and prepare witnesses. Likewise, the restoration of the right to file briefs – and the five to 15 business day period for doing so – will extend the critical period and, if applicable, the time between the election and certification.
However, pending the Board’s appeal of the court’s order, the broad-based final election rule will not have the more expansive impact that the Board – and employers – might have envisioned. While the surviving portions of the rule do provide some relief from the prior election rules that have been in place since 2014, this is primarily true only in cases where there are issues that warrant a pre-election hearing. But in cases that do not proceed to hearing (or proceed to a hearing on issues that are quickly resolved), Regional Directors will continue to adhere to their current practice of directing elections for the “earliest date practicable.”
Likewise, while the final rule slightly lengthens the period following the election by permitting the parties extra time to file post-hearing briefs, this is only true in cases necessitating a post-election hearing. However, if there is no post-election hearing – or the hearing presents only minor issues that are readily resolved by the Regional Director – the Regional Director still will certify the results of an election following resolution of the issues at hearing, even where a request for review is pending with the Board.
MORE QUESTIONS MOVING FORWARD?
With the Board having signaled its intention to appeal the court’s decision invalidating portions of the broad-based election changes, there is still a chance that the invalidated portions of the final rule will be implemented sometime in the future. Until then, it becomes more critical for employers to seek to identify legitimate and substantial issues, if any, that warrant a hearing and then allow for a hearing schedule and post-hearing briefs. Prior to the election, such issues include substantial questions of representation (such as whether the employees in the proposed unit share a community of interest) or disputes over the eligibility of at least 20% of the potential voters. Cases that do not involve such issues will not proceed to hearing and continue to be processed by Regional Directors expediently, with elections still to be scheduled for the “earliest date practicable.” After the election, whether a hearing is warranted will depend on a variety of factors, including the need to litigate “challenged ballots” and the existence of objectionable conduct that would warrant setting aside the results of the election.
There also is a possibility that the litigation saga is not yet complete. On June 9, 2020, the AFL-CIO moved for reconsideration of the court’s decision not to consider Counts Two through Four of the Complaint, which contain additional allegations that the Board violated the APA through its promulgation of the final rule. Should the court grant the AFL-CIO’s motion, it could invalidate more of the broad-based election changes in a future opinion. The Board filed an opposition to the AFL-CIO’s motion on June 15.
ALSO COMING – ‘ELECTION PROTECTION’ CHANGES
In the meantime, the Board has moved forward with the three-part “election protection” changes that were first published (as a proposed rule) on August 12, 2019, and the Board published its final election protection rule on April 1, 2020. This final rule would make three changes that are intended to protect the right of employees to exercise free choice regarding questions concerning union representation.
First, the rule changes and essentially eliminates the Board’s longstanding, controversial “blocking charge” doctrine, which previously permitted certain unfair labor practice (ULP) charges to “block” a Board-scheduled election and often delayed elections for months or years until the ULP allegations were resolved. The new rule provides that pre-election ULP charges would not block the election, which would occur as scheduled; and depending on the particular type of alleged violation, the Board would either immediately open and count the ballots, or impound the ballots for up to 60 days and open them only after the charge is withdrawn or dismissed, or if a complaint issues during the 60-day period, after a final determination regarding the charge and its effect; and the certification of results would not issue until the Board makes a final disposition of the charge and its effect.
Second, the rule changes the extent to which an employer’s voluntary union recognition may “bar” the processing of a representation petition. The Board’s prior voluntary “recognition bar” immediately prevented the processing of any decertification or rival election petition until a “reasonable” period of time elapsed (as determined by the Board), and if the parties entered into a collective bargaining agreement, the Board’s “contract bar” doctrine would then bar any decertification or rival election petition for the agreement’s duration up to a maximum limit of three years. The new rule reinstates the notice/45-day window approach previously adopted by the Board in Dana/Metaldyne, 351 NLRB 434 (2007). Accordingly, an employer’s voluntary recognition of a union will not immediately bar any decertification or rival petition; however, if the employer and/or union notifies an NLRB Regional Office that voluntary recognition has been granted and the employer prominently posts a “notice of recognition” (advising employees they have a 45-day window in which to file an election petition), upon expiration of the 45-day window (if no petition is filed), any subsequent petition will be barred by the employer’s voluntary recognition for a reasonable period, and by any first collective bargaining agreement entered into by the employer and union.
Third, the rule changes the complicated treatment of construction industry “prehire” agreements entered into under Section 8(f) of the National Labor Relations Act. Prehire agreements may be entered into by an employer and union without any showing that the union has employee majority support, and these agreements are governed by other principles that substantially differ from conventional collective bargaining agreements which, under Section 9(a) of the Act, must be based on a showing of employee majority support. In Staunton Fuel & Material, the Board held that contract language, standing alone, could prove that a construction industry union had achieved majority status under Section 9(a), even if a majority of employees never expressed support for the union (and even if the employer had no employees when the relevant labor contract had been entered into). The NLRB’s new rule, consistent with court decisions that had rejected Staunton Fuel, provides that contract language, standing alone, “will not be sufficient to provide [a] showing of majority support,” and a Section 9(a) contract – which can bar a decertification or rival election petition – will only be found to exist based on “positive evidence that the union unequivocally demanded recognition as the section 9(a) exclusive bargaining representative of employees in an appropriate bargaining unit, and that the employer unequivocally accepted it as such, based on a contemporaneous showing of support from a majority of employees in an appropriate unit.”
The Board’s three-part election protection rule was originally scheduled to become effective on June 1, 2020. However, the Board announced on April 8 that, based on the “national emergency” caused by the coronavirus (COVID-19) pandemic, the effective date of the election protection rule was being postponed to July 31, 2020.
 Representation-Case Procedures, Final Rule, 84 Fed. Reg. 69,524 (Dec. 18, 2019) (to be codified at 29 C.F.R. pt. 102).
 Representation-Case Procedures, 84 Fed. Reg. at 69,528.
 Complaint, AFL-CIO v. NLRB, No. 20-cv-00675 (D.D.C. Mar. 6, 2020).
 Notice of Extension of the Effective Date of Defendant National Labor Relations Board’s Representation-Case Procedures Rule, AFL-CIO v. NLRB, No. 20-cv-00675 (D.D.C. Mar. 20, 2020).
 Order, Am. Fed’n of Labor & Cong. Of Indus. Organizations v. NLRB, No. 20-cv-00675 (D.D.C. May 30, 2020).
 Memorandum Opinion at 36, AFL-CIO v. NLRB, No. 20-cv-00675 (D.D.C. June 7, 2020) (emphasis in original).
 Memorandum GC 20–07 (June 1, 2020).
 Plaintiff’s Motion for Reconsideration, AFL-CIO v. NLRB, No. 20-cv-00675 (D.D.C. June 9, 2020).
 NLRB’s Memorandum in Opposition to Motion for Reconsideration By AFL-CIO, AFL-CIO v. NLRB, No. 20-cv-00675 (D.D.C. June 12, 2020).
 Representation-Case Procedures: Elections Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships, Notice of Proposed Rulemaking, 84 Fed. Reg. 39,930 (Aug. 12, 2019) (to be codified at 29 C.F.R. pt. 103).
 Representation-Case Procedures: Elections Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships, Final Rule, 85 Fed. Reg. 18,366 (Apr. 1, 2020) (to be codified at 29 C.F.R. pt. 103).
 335 NLRB 717, 719–20 (2001).
 See, e.g., Nova Plumbing, Inc. v. NLRB, 330 F.3d 531, 53637 (D.C. Cir. 2003).
 “Board Delays Effective Date of Election Protection Final Rule,” NLRB (April 8, 2020). See also Representation-Case Procedures: Elections Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships, Final Rule; Delay of Effective Date, 85 Fed. Reg. 20,156 (Apr. 10, 2020) (to be codified at 29 C.F.R. pt. 103).