Labor & Employment Law Daily Portions of NLRB direct final rule amending representation procedures enjoined
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Thursday, June 4, 2020

Portions of NLRB direct final rule amending representation procedures enjoined

By Ronald Miller, J.D.

Portions of the NLRB 2019 final rule on representation-case procedures that upended many aspects of the 2014 Obama-era election rule have been put on hold.

In a news release issued on June 1, 2020, the NLRB announced that it will implement in full all of the rule changes unaffected by a minute order issued on May 30, 2020, by which a federal district court in the District of Columbia enjoined implementation of five aspects of the NLRB’s December 2019 Representation Procedures amendments. The challenged provisions include:

(1) Reinstitution of pre-election hearings for litigating eligibility issues;
(2) timing of the date of election;
(3) voter list timing;
(4) election observer eligibility; and
(5) timing of regional directors’ certification of representatives.

On December 13, 2019, without notice and comment, the Board announced a set of modifications to its Rules and Regulations governing the processing of representation cases that upended an Obama-era rule. According to the Board, the 2019 final rule amendments followed significant revisions of long-standing practices and procedures promulgated by the Board in 2014, which imposed a variety of new procedural requirements on the parties and significantly contracted the timeline between the filing of a petition and the election.

The 2014 revisions raised concerns among some stakeholders that the timeframe prior to the pre-election hearing was too truncated to allow the parties to prepare for the hearing and for the Board to meet its regulatory obligations.

Enjoined provisions. Those sections which cannot be implemented while the injunction is in place include changes tha:

(1) gave parties the right to litigate most voter eligibility and inclusion issues prior to the election (Section 102.64(a));
(2) instructed that the Regional Director normally will not schedule an election before the 20th business day after the date of the direction of election (Section 102.67(b));
(3) mandated that employers furnish the required voter list to the Regional Director and other parties within five business days (rather than the two business days under the 2014 Rules) following the issuance of a direction of election (Section 102.67(l));
(4) limited a party’s selection of election observers to individuals who are current members of the voting unit whenever possible (Section 102.69(a)(5)); and
(5) instructed that the Regional Director will no longer issue certifications following elections if a request for review is pending or before the time has passed during which a request for review could be filed (Section 102.69(b) and (c)).

Provisions implemented. The NLRB General Counsel, Peter B. Robb, has issued a guidance memorandum, GC 20-07, regarding implementation of the rule. The remaining provisions are effective immediately, pursuant to the rule’s May 31 effective date. These include:

  • Pre-election hearings. The pre-election hearing will generally be scheduled to open 14 business days from notice of the hearing; Regional Directors will have discretion to postpone the opening of the hearing for good cause. (The pre-election hearing was scheduled to open eight calendar days from the notice of hearing under prior rules).
  • Notice of petition for election. The employer will be required to post and distribute the Notice of Petition for Election within five business days after service of the notice of hearing. (Prior rules required posting and distribution within two business days.).
  • Non-petitioning party’s statement of position. Non-petitioning parties must file a Statement of Position within eight business days after service of the notice of hearing (rather than seven calendar days, and Regional Directors will have greater discretion to grant extensions.
  • Petitioning party’s statement of position. The petitioner will need to file and serve a Statement of Position on the other parties responding to the issues raised by any non-petitioning party in a Statement of Position. The responsive Statement of Position will be due at noon, three business days before the hearing is scheduled to open—three business days after the initial Statement(s) of Position must be received; timely amendments may be made on a showing of good cause. (The petitioner was previously required to respond orally to the Statement(s) of Position at the start of the pre-election hearing.).
  • Post-hearing briefs. Parties are permitted once again to file post-hearing briefs with the Regional Director following pre-election hearings (rather than only upon special permission of Regional Director). Post-hearing briefs will be permitted for post-election hearings as well. Such briefs are due within five business days, and Hearing Officers may grant an extension of up to 10 business days for good cause.
  • Notice of election. The Regional Director’s discretion to issue a Notice of Election after issuing a direction of election is emphasized. (Prior rules provided that regional directors “ordinarily will” specify election details in the direction of election.).
  • Requests for review. If the Board either does not rule on a request for review or grants the request before the election, ballots will be impounded and remain unopened pending a decision by the Board. Parties may file a request for review of a direction of election more than 10 business days after the direction, but the pendency of such a request for review will not requirement impoundment of the ballots or postponement of issuing a Tally of Ballots. Consistent with the practice, parties may wait to file a request for review of a direction of election until after the election has been conducted and the ballots counted.
  • Opposition to requests for review. Oppositions are explicitly permitted in response to all types of requests for review, and the practice of permitting replies to oppositions and briefs on review only upon special leave of the Board has been codified.
  • Business day calculation. All time periods applicable to the election rule are calculated based on business days as opposed to calendar days. Under the 2014 Rules, there was a lack of consistency on the calculation of days. The 2019 Amendments also define how business days are calculated, including clarification that only weekend days and federal holidays are not designated business days in the time period calculations.

The Board indicated that it intended to appeal the court’s order to the Court of Appeals once the court issues its memorandum opinion. The D.C. Circuit case is AFL-CIO v. NLRB, Civ. No. 20-CV-0675, May 30, 2020, Judge Ketanji Brown Jackson.

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