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Volume X, Number 187

July 03, 2020

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July 02, 2020

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The NLRB Reacts to Court’s Eleventh-Hour Partial Injunction of the Agency’s New Election Rules

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.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 154

TRENDING LEGAL ANALYSIS


About this Author

Keahn Morris, Sheppard Mullin Law Firm, San Francisco, Labor and Employment Law Attorney
Associate

Keahn N. Morris is an associate in the Labor and Employment Practice Group in the San Francisco office.Keahn’s practice focuses on all areas of labor and employment law, with an emphasis on traditional labor law, high-stakes employment-related litigation, and proactive counseling of management-side clients. Recognized by Super Lawyers as a "Rising Star", Keahn was identified as a top rated labor and employment attorney in San Francisco in 2014, 2015, 2016, and 2017. He has significant experience in all aspects of labor-management relations law, including union corporate...

415-774-2934
James Hays, Legal Specialist, management of labor and employment law
Partner

 Mr. Hays is a partner in the Labor & Employment Practice Group in the firm's New York office and co-chairs the firm's Traditional Labor Law Team.

Areas of Practice

Mr. Hays' practice focuses on management labor and employment law. He represents clients in collective bargaining negotiations, labor arbitrations, and all stages of the labor election process, including election campaigns and hearings before the National Labor Relations Board. He also represents clients in employment litigation in federal and state courts, as well as various arbitration forums, and in proceedings before various administrative agencies, including the Equal Employment Opportunity Commission, the United States Department of Labor, and state agencies throughout the United States.

212-634-3025
John Bolesta, Lawyer, Employment, Sheppard Mullin Law Firm
Special Counsel

John S. Bolesta is a Special Counsel in the Labor and Employment Practice Group in the firm's Washington, D.C. office

Areas of Practice

Mr. Bolesta represents management in a wide variety of labor and employment litigation matters. He represents clients in a broad range of industries during union organizing attempts and litigation before the National Labor Relations Board, contract negotiation and labor arbitrations. Additionally, he advises clients on best practices in employee relations and the development of comprehensive labor strategies to preserve the...

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