July 11, 2020

Volume X, Number 193

July 10, 2020

Subscribe to Latest Legal News and Analysis

July 09, 2020

Subscribe to Latest Legal News and Analysis

Breaking: Federal Court Strikes Down New NLRB Rules on Representation Election Procedures; Implementation Delayed and Status of the Rules Uncertain

After an initial COVID-19 related delay, the sweeping new NLRB representation election rules that reversed the Obama-era “quickie” election process were about to go into effect on May 31, 2020.  However, an eleventh-hour district court order struck down a significant portion of the rule as unlawfully implemented for failing to follow proper administrative procedure, casting doubt on when, if at all, the new rules will apply.  Details of the planned changes are outlined in our reporting on the NLRB’s initial announcement of proposed amendments, as well as updated rules regarding election rules and procedures here and here.

On May 30, 2020, in a much-anticipated decision in a case brought by the AFL-CIO against the NLRB, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia found that the challenged-portion of the NLRB rules were substantive (not procedural) in nature and were, therefore, improperly implemented without providing the public a notice-and-comment period to provide feedback before implementation as required under the Administrative Procedure Act.

The AFL-CIO challenged (and the court overturned) the following aspects of the rules:

  • Additions to the issues a petitioning party must litigate before obtaining an election,

  • Providing parties the right to an NLRB advisory opinion on the status of particular individuals under the NLRA,

  • Increasing the length of the campaign period,

  • Modifying petitioners’ rights to voter lists,

  • Limiting parties’ rights to select certain election observers, and

  • Delaying employees’ rights to bargaining collectively in certain cases even after a majority vote, by preventing regional directors from counting ballots and certifying results.

The Court did not vacate the remainder of the rules that were set to go into effect, which included extensions of time with regard to the election process and other procedural aspects of pre-election hearings, but remanded the entire set of rules to the NLRB for reconsideration in light of the Court’s finding.

The order will not become a final order until the Court has issued its full Memorandum Opinion, which it stated it would do soon.  The order is then subject to appeal.  We previously noted that NLRB Regions considered this lawsuit when advising on the rules, and we will continue to monitor the Court’s full Opinion and any appeal by the NLRB.

For now, employers should be aware that the Court effectively prevented any portion of the rule from taking effect this week.  Until the NLRB reconsiders the rules in light of the notice-and-comment requirements, or the Court rules otherwise in response to an appeal, the 2014 rules regarding representation election procedures remain in effect.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 153


About this Author

Michael J Lebowich, Labor, Employment, Attorney, Proskauer, Law Firm

Michael Lebowich is a Partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He...

Joshua Fox Labor & Employment Attorney Proskauer Rose

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League Baseball, the National Hockey League, the National Football League, the National Basketball Association, and Major League Soccer in collective bargaining, labor relations issues, such as grievance and salary arbitrations, and wage-and-hour issues.

Heylee S. Bernstein Associate Proskauer Labor & Employment Employment Counseling & Training

Heylee Bernstein is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Heylee earned her J.D. cum laude from Harvard Law School, where she served as the President of the Committee on Sports and Entertainment Law. In addition, she was a Senior Article Editor for the Journal of Sports and Entertainment Law, and served as a Research Assistant in the Labor & Worklife Program.