Court Strikes Down Parts Of NLRB Representation Election Rules In Eleventh-Hour Decision

Portions of the NLRB's expansive new representation election rules–scheduled to go into effect on May 31, 2020 following a COVID-19 related delay–were struck down by court order one day prior to becoming effective. On May 30, 2020, a judge for the U.S. District Court for the District of Columbia ruled that certain portions of the NLRB rules that were challenged by the AFL-CIO were substantive in nature and not implemented in accordance with the Administrative Procedure Act, which requires that any rules that are not merely procedural in nature be subject to a notice-and-comment period. This late-game decision follows numerous public information sessions held by the NLRB in anticipation of the rollout of the new rules.

In her ruling, Judge Ketanji Brown Jackson overturned elements of the rules challenged by the AFL-CIO, including:

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

The remainder of the rules were not overturned by the Court; however, the Court remanded the entire set of rules to the NLRB for reconsideration following the court's ruling. On June 1, 2020, the NLRB announced that all unaffected rules would be implemented immediately, and those now effective changes include the following:

• Scheduling the hearing at least 14 days from issuance of the notice of hearing;
• Posting the notice of election within 5 days instead of 2 days;
• Changes in timeline for serving the non-petitioning party's statement of position;
• Requiring petitioner to serve a responsive statement of position;
• Reinstatement of Post-Hearing Briefs;
• Reinstating Regional Director discretion on the timing of a notice of election after the direction of an election;
• Ballot impoundment procedures when a request for review is pending;
• Prohibition on bifurcated requests for review;
• Certain changes in formatting for pleadings and other documents; and
• Terminology changes and defining days as "business" days.

The Court's order is not yet final and a full Memorandum Opinion is still forthcoming, at which point the NLRB insists it will appeal.

In the interim, the 2014 rules regarding R-case procedures remain in effect as modified above. This decision is a disappointment to those that were anticipating a completely revised set of election rules to replace the so-called ambush election rules. A process that provides the parties with a more reasonable time line is particularly important given the difficulties in campaigning during the current COVID-19 pandemic. Having said that, there are some significant modifications to the prior election rules now in effect that will provide for more meaningful analysis, including an opportunity to understand the petitioner's legal position before the hearing.

Employers should continue to be proactive to maintain positive employee relations, stay in front of workplace issues, and have plans in place for union-organizing efforts. We are here to help.