Last December, we addressed the National Labor Relations Board’s (NLRB or Board) new rules applicable to all NLRB-conducted elections.  As then reported, these new rules partially reversed election rules implemented in 2014 and were designed to address many of the concerns raised by the Board’s 2014 rules changes.  Specifically, the Trump Board has repeatedly expressed concern that the timeframe prior to a pre-election hearing was too truncated to allow the parties to adequately prepare for hearing and meet their many regulatory obligations.  Originally scheduled to take effect April 16, 2020, implementation was later postponed and rescheduled to take effect on May 31.

Even though all of the Board’s new rule changes appear to be purely procedural in nature, on May 30, Judge Ketanji Brown Jackson issued an injunction (in AFL-CIO v. NLRB, Civ. No. 20-CV-0675) at the request of the AFL-CIO, restraining the Board from implementing certain of its’ rule changes, finding that they were substantive rule changes or changes affecting substantive rights requiring a public notice and comment period prior to their implementation.  The Court’s order was not accompanied by a legal memorandum explaining the basis for the Court’s last-minute injunction, although the Court’s order promised one soon.  Among the rule changes that were enjoined are the following:

• The reinstitution of pre-election hearings on litigating eligibility issues;

• the mandate that elections not take place until after at least 20 business days following the issuance of a regional decision and direction of election;

• the extension of time for the production of a voter list from 2 to 5 days from the filing of a petition;

• the requirement that election observers be members of the voting unit; and

• the stay on election certifications while requests for review of could be filed or were still pending.

On June 1, the Board issued a public announcement reacting to Judge Jackson’s last minute decision, stating that the Agency believes that “it followed all legal requirements in issuing the December 2019 amendments to its procedural rules” and that it intended “to appeal the Court’s order to the court of appeals once the Court issues it memorandum opinion.”  The Board further announced that it would immediately implement those new rules that were not enjoined by the Court.

Also issued on June 1, was General Counsel’s memo GC 20-07 providing guidance on implementation of the new rules not enjoined by Judge Jackson.  Some of the more significant changes that went into effect on May 31 are the following:

• The enlargement of time for the scheduling of a pre-election hearing to a minimum of 14 days from the issuance of the notice of hearing;

• posting and distributing the Notice of Petition within five business days after service of the notice of hearing;

• changes in the timeline for the filing of a non-petitioner’s statement of position (SOP);

• requiring a petitioner to file a pre-hearing SOP;

• reinstituting the right to file post hearing briefs;

• reinstating a Regional Director’s discretion on the timing of a notice of election following the issuance of a direction of election; and

• requiring ballot impoundment during the pendency of a request for review filed within 10 days of after a direction of election.

TAKEAWAYS:

Even though Big Labor was able to temporarily foil some of the Board’s new election rules, the new rules that the Court did not enjoin and that went into effect on May 31 will make major changes to the Board’s 2014 “rush to an election” rules.

These new rules that were not enjoined will still slow the election process, affording employers a better opportunity to litigate its rights before the Agency and to educate workers on the realities of unionization.

Meanwhile, those rules that were enjoined by the Court will be taken to the D.C. Circuit for review.  An appellate decision is expected next year.