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July 10, 2020

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July 09, 2020

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NLRB: Elements of Election Rule are Blocked by Court, But Board Implements the Rest

One day before they were to go into effect, the U.S. District Court in Washington, D.C. blocked portions of the NLRB’s recently promulgated election rule, but left the agency free to implement the remainder.  American Federation of Labor and Congress of Industrial Organizations v. National Labor Relations Board, Civ. No. 20-cv-0675 (KBJ) (May 30, 2020).

Specifically, the Court granted the AFL-CIO’s motion for summary judgment “with respect to Count One of the Complaint”, but “will not vacate the remainder of the rule,” which was “remanded to the NLRB for reconsideration in light of this Court’s ruling.”

The  Election Rule was promulgated on December 18, 2019 (84 Fed. Reg. 69,524) without following notice and comment rulemaking pursuant to the Administrative Procedure Act, 5 U.S.C. Sec. 553(b), (c). This was the basis for Count One of the Complaint, which argued that portions of the rule were substantive, not procedural, and therefore were invalid because the NLRB did not utilize notice and comment rulemaking in their promulgation.

Count One of the Complaint, as amplified by the Plaintiff’s motion for summary judgment, identified five provisions of the rule that it argued were substantive, not procedural, and it was these five provisions that were invalidated by the Court’s decision:

  • giving parties a right to litigate the status of particular individuals under the NLRA and consequently whether they are eligible to be in a bargaining unit and vote in the representation election);

  • requiring at least 20 business days between the order directing the election and the conduct of the election;

  • extending from 2 days to 5 days the time within which the employer must provide the union with the list of eligible voters;

  • restricting the parties’ choice of election observers to only current proposed bargaining unit employees; and

  • delaying the certification of election results until the time for filing a request for review with the Board has run, or if review is requested, until it is disposed of by the Board.

The remainder of the rules were not disturbed by the Court’s order, and on June 1, 2020, the Board’s General Counsel issued Memorandum GC 20-07 (Guidance Memorandum on Representation Case Procedure Changes), outlining the provisions of the rule that are being immediately implemented.

This does not end the matter, however, and questions and issues still abound.

  • First, how does the Board’s immediate implementation of the remaining rules square with the Court’s remand of the remaining rules “to the NLRB for reconsideration in light of the  Court’s ruling”?

  • Second, the Court stated its intention to issue a “Memorandum Opinion . . . soon, absent unforeseen circumstances.” How might that opinion alter or clarify the provisions of the Order?

  • For example, the Order says it grant’s plaintiff’s summary judgement as to Count One of the Complaint – but Count One also argues that the remaining provisions of the election rule are not severable. How does that square with the Court’s failure to vacate the remainder of the rule.  Might that be re-addressed in the Memorandum Opinion?

  • Finally, the Order states that it “shall not be deemed a final Order subject to appeal until the Court has issued its Memorandum Opinion.” The Board stated in its press release of June 20, 2020, that it plans to appeal the Court’s decision. Until that appeal is completed, we do not necessarily have the final judicial word on the efficacy of the rule.


Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 154


About this Author

Ronald Meisburg Special Counsel Washington DC labor management relations law and policy
Special Counsel

Ronald’s practice focuses on labor management relations law and policy.

Ronald is a former National Labor Relations Board member and general counsel.

Prior to joining the firm, Ronald co-chaired the labor-management relations practice at an international law firm. Over the course of his 40-year career, which began with the Office of the Solicitor of the US Department of Labor, Ronald has handled matters arising under federal labor and employment law in complex business transactions before federal agencies and courts.

Ronald joined the NLRB in 2004, following a recess...

Robert T. Dumbacher Labor & Employment Attorney Hunton Andrews Kurth Atlanta, GA

Bob’s practice focuses on representing and advising employers in complex labor relations and employment planning and disputes, including trade secrets/non-compete disputes and wage and hour issues.

Bob has obtained numerous positive results in litigated matters, including large-scale labor relations matters and restrictive covenants disputes, one of which was the groundbreaking relief under Georgia’s recently-passed Restrictive Covenants Act. Bob believes it is important for employers to proactively think about how to avoid or mitigate the risks of litigation and works closely with clients on these issues. He prides himself in being extremely responsive to client needs.

Bob also enjoys working with businesses and individuals to help them reach their goals on transactional matters without the need for litigation or excessive adversarialism. Bob is a member of the State Bar of Georgia, Labor and Employment Law Section and the Atlanta Bar Association. He is admitted to practice before the US District Court for the Northern District of Georgia, US Courts of Appeals for the District of Columbia, the Second Circuit, the Seventh Circuit and the Eleventh Circuit, and the Georgia Superior Courts.

Bob volunteers with the Pro Bono Partnership of Atlanta and other organizations. He is a contributing author to the Hunton Employment & Labor Perspectives blog.

Relevant Experience

  • Regularly represents clients before the National Labor Relations Board, including prosecution and defense of unfair labor practice charges. Experience also includes litigating a compliance proceeding in which back pay award and related damages of over $50 million was sought.
  • Counsels clients subjected to union organizing campaigns and coordinated corporate campaigns. Has counseled clients in several industries to successful results in several union organizing campaigns conducted under National Labor Relations Board’s expedited election rules.
  • Handles appeals of agency rulings, including those from the National Labor Relations Board. Has successfully participated in four successful appellate actions including Board rulings, including two as lead counsel.
  • Provides in-person training to clients on labor relations issues.
  • Represents clients at labor arbitrations and in collective bargaining negotiations.