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NLRB to Put in Place Some Union Election Changes After Ruling

June 2, 2020, 12:37 AM

The NLRB said it would implement immediately several portions of proposed modifications to how union elections for private-sector workers are conducted, while putting aside other portions nixed by a federal court this past weekend.

The board added Monday that it plans to appeal the court’s ruling.

U.S. District Judge Ketanji Brown Jackson ruled May 30 that the bulk of the National Labor Relations Board regulations are substantive rules that affect the rights of parties, not merely procedural rules about the methods of conducting the election. That finding means the board violated administrative law when it issued some of those provisions without first going through a public notice-and-comment process.

The board said Monday that it will “implement in full all of the rule changes unaffected by the recent” order.

That includes a series of extensions of existing deadlines, as well as requiring unions to file a responsive statement of position; impounding and not counting ballots if an employer’s challenge to some aspect of the election process remains pending after votes are cast; and certain changes that give employers a right to challenge certain issues after a hearing, as opposed to letting agency officials decide whether to allow the challenge.

“While the Court’s order prevents the Board from implementing five provisions of the December 2019 amendments, the Court did not vacate the majority of the rule,” the NLRB said in a statement. “Accordingly, pursuant to the Court’s order, the Board has directed the amendments unaffected by the Court’s order to remain in place as of yesterday’s effective date, consistent with the National Labor Relations Act and the Administrative Procedure Act.”

Management-side attorneys and the business community have long advocated for a change to the union election framework put in place in 2014, arguing that those rules don’t allow enough time for businesses to educate workers on the advantages and disadvantages of unionization. The Republican members of the NLRB who proposed the rule partially blocked by Jackson cited those concerns behind their move to implement the rules.

“By going ahead and implementing all of the provisions which the District Court did not invalidate, the NLRB only has to appeal a limited number of provisions,” said former Republican NLRB general counsel Jerry Hunter.

Hunter is now a management-side lawyer and partner at Bryan Cave Leighton Paisner in St. Louis.

The board also could try to salvage its other provisions via another rulemaking, rather than a federal appeals court, Hunter said.

“I believe it would make a lot of sense for the board to do a limited rulemaking, which it could complete in a few months, rather than go through the appeal process,” which “could last past the November election,” he said.

Jackson’s short order struck down the challenged portions of the rule. She said she would issue a full opinion soon.

Those invalidated sections include changes that gave employers more leeway to challenge and litigate certain issues, such as who’s eligible to join the union prior to the election; required a 20-business-day waiting period between when agency officials approve an election and the date the election is to take place; and limited election observers to the group of employees eligible to vote in the election.

The NLRB released a guidance memorandum on the new processes along with its announcement.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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