July 11, 2020

Volume X, Number 193

July 10, 2020

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July 09, 2020

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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.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 154

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About this Author

Steven Porzio, Proskauer, labor attorney, employment lawyer,
Associate

Steven Porzio is an associate in the Labor & Employment Law Department and a member of both the Labor-Management Relations Group and Employment Law Counseling & Training Group. Steve assists both unionized and union-free clients with a full-range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board. 

Steve has experience conducting vulnerability assessments and...

212-969-3079
Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

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.

212.969.3507
Heylee S. Bernstein Associate Proskauer Labor & Employment Employment Counseling & Training
Associate

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. 

1-617-526-9621