July 5, 2020

Volume X, Number 187

July 03, 2020

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Despite Court Ruling, NLRB Implements Much of New Election Rule

The National Labor Relation Board (NLRB) has implemented several parts of its new election rule. U.S. District Court Judge Ketanji Brown Jackson enjoined parts of the rule that, in her view, were not lawfully promulgated. AFL-CIO v. NLRB, No. 20-CV-0675 (D. D.C. May 30, 2020). For more on the ruling, see our post, District Court Hits “Pause” on New NLRB Election Rule. The entire rule was scheduled to go into effect on May 31.

The new rule aimed to reform the controversial Obama-era “quickie election” regulations. Among the reforms that the Court decided would not go into effect on May 31 are:

  • Expansion of the right to pre-election litigation of voter inclusion and eligibility issues
  • Increased amount of time prior to an election for communication with employees about election issues
  • Increased amount of time for employers to furnish a list of eligible voters to the union and NLRB Regional Office
  • Limit to who may serve as election observers (only bargaining unit members)
  • Delay of election certification where an appeal is pending

Rather than shelve the entire rule pending an appeal of the Judge’s ruling, the NLRB has implemented the remaining parts of the new rule unaffected by the Judge’s ruling. These include:

  • Scheduling the initial hearing date at least 14 business days (rather than eight calendar days) from the Notice of Hearing
  • Employer posting of the Notice of Petition within five business days (rather than two calendar days) after service of the Notice of Hearing.
  • Filing, by the employer, of the Statement of Position within eight business days (rather than the seven calendar days under the quickie election rule) after service of the Notice of Hearing
  • Establishment of a Statement of Position to be filed by the Petitioner in response to the issues raised in any Statement of Position
  • Allowing the parties to file post-hearing briefs
  • Ballot impoundment procedures when a request for review (appeal) is pending on the date the election is held

Critics say the Court’s Order prevents immediate application of reforms that would enhance employees’ rights to know who is eligible to vote before ballots are cast, allow more time for informed decision-making about union representation, and avoid procedural confusion caused by bargaining unit certifications while appeals of Regional Director rulings are pending.

The new election procedures are complex. Employers that receive election petitions are urged to contact counsel for guidance.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 156


About this Author

Thomas V. Walsh, Jackson Lewis, employment arbitration Lawyer, White plains, Union Organizing Attorney

Thomas V. Walsh is a Shareholder in the White Plains, New York, office of Jackson Lewis P.C. Since joining the firm in 1986, Mr. Walsh has represented employers in all aspects of labor and employment law and litigation.

Mr. Walsh has represented employers before numerous state and federal courts, regulatory agencies, as well as in numerous arbitrations. Mr. Walsh has extensive experience in representing employers faced with union organizing drives and in proceedings before the National Labor Relations Board. He has an...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...