On May 30, 2020, the U.S. District Court for the District of Columbia issued an eleventh-hour decision preventing the National Labor Relations Board (NLRB) from implementing new rules on union representation election procedures. Promulgated via rulemaking in December 2019, the NLRB planned to implement the new rules on May 31, 2020 after postponing the original enactment by over a month due to COVID-19. The AFL-CIO sued to enjoin the new union election rules in early March, claiming the rules were substantive, not procedural, and were implemented without providing the required public notice-and-comment period, thus violating the Administrative Procedure Act (APA).
The new rules, as explained by our March 2020 article, benefitted employers by nearly doubling the time from petition to election. U.S. District Judge Ketanji Brown Jackson struck down several major aspects of the rules that the AFL-CIO challenged, including the following:
- Extending the time within the employer must furnish the voter list from two days to five business days.
- Requiring a 20-business-day window between the NLRB’s direction of an election and the election itself.
- Permitting parties to litigate issues of unit scope and voter eligibility at the pre-election hearing and requiring the Regional Director to rule on those issues prior to the direction of election.
- Limiting the potential election observers to only current putative bargaining unit employees.
- Prohibiting the certification of election results if a request for review is pending.
Although the Court upheld some procedural portions of the new rules, the portions declared unlawful neutralize many of the most prominent effects of the new rules. Under the APA, procedural rules are not subject to review by the public. However, the public must review substantive rules prior to finalization. Significant aspects of the new rules that the court determined to be lawful include the following:
- Calculating all periods of time as business days.
- Posting the notice of election within five business days rather than two days.
- Scheduling hearings at least 14 business days from the issuance of the notice of hearing.
- Reinstating Post-Hearing Briefs.
- Granting the Regional Director discretion to determine the timing of a notice of election after the direction of an election.
- Automatically impounding ballots when a request for review is pending.
The portions of the new election rules not struck down by the court officially took effect on May 31, 2020. These new rules will still lengthen the representative election process, albeit less than they would have without the court’s intervention.
What is Next for Union Election Procedures
Although the full opinion has yet to issue, the NLRB has announced its intention to appeal the Court’s decision. The NLRB contends that the December 2019 union election rules are purely procedural and that it followed all legal requirements prior to promulgating the rules. Until parties reach a final resolution regarding the December 2019 union election rules, the Obama-era "Quickie Election" rules continue to control.
If you have questions about union election procedures, the Court’s decision, or any other labor-management relations issues, please contact an attorney on Faegre Drinker’s labor management relations team.