Update: Despite Order Striking Down Portions of NLRB Rulemaking on Representation Election Procedures, NLRB Implements Rules Unaffected by Order
On Sunday, we reported on an eleventh-hour district court order striking down large portions of the NLRB’s new representation election rules that were set to go into effect on May 31, 2020. The district court order held certain portions of the rule were unlawful because they failed to follow proper notice-and-comment rulemaking as required for substantive rules. The order remanded the entire set of rules to the NLRB to reconsider in light of the order.
Yesterday, the NLRB announced that effective immediately, it would implement all rules that were unaffected by the order. According to the NLRB’s press release, the following rule changes are now in effect:
- Scheduling hearings at least 14 days from issuing a notice of hearing,
- Posting the notice of election within 5 days,
- Timeline changes for serving the non-petitioning party’s statement of position,
- Requiring petitioners to serve a responsive statement of position,
- Eliminating requirement that post-hearing briefs be permitted only upon permission being granted,
- Reinstating Regional Directors’ discretion on the timing of a notice of election after the direction of an election,
- Ballot impounding procedure changes when a request for review is pending,
- Prohibiting bifurcated requests for review,
- Pleading and other document formatting changes,
- Terminology changes, and
- Defining “days” as “business days.”
The Board noted it planned on appealing the district court order. We will continue to monitor for appeals and other updates.
As we reported here, NLRB Regions are holding information sessions to discuss representation case changes. Information sessions are still scheduled for the coming days, and will likely discuss implementing the effective rules. Information on these sessions can be found on the “Latest News” section on NLRB.gov.