NLRB to Implement All Election Rule Changes Unaffected by Court Ruling

WASHINGTON, DC –  The National Labor Relations Board today announced that it will implement in full all of the rule changes unaffected by the recent U.S. District Court order. The order was issued on May 30, 2020 regarding implementation of certain provisions of the Board’s December 2019 Representation Procedures amendments.

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. 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.

The Court’s Order granted summary judgment as to Count One of the complaint, which challenged the following five provisions contained in the December 2019 amendments:

• Reinstitution of pre-election hearings for litigating eligibility issues;
• Timing of the date of election;
• Voter list timing;
• Election observer eligibility; and
• Timing of Regional Director certification of representatives.

The remaining provisions are effective immediately, pursuant to the rule’s May 31 effective date. These include: 

• Scheduling the hearing at least 14 days from issuance of the notice of hearing;
• Posting the notice of election within 5 days instead of 2 days;
• Changes in timeline for serving the non-petitioning party’s statement of position;
• Requiring petitioner to serve a responsive statement of position;
• Reinstatement of Post-Hearing Briefs;
• Reinstating Regional Director discretion on the timing of a notice of election after the direction of an election;
• Ballot impoundment procedures when a request for review is pending;
• Prohibition on bifurcated requests for review;
• Certain changes in formatting for pleadings and other documents; and
• Terminology changes and defining days as “business” days. 

The General Counsel has issued a guidance memorandum regarding implementation of the rule. GC 20-07.   

The Board continues to believe that it followed all legal requirements in issuing the December 2019 amendments to its procedural rules. The Board intends to appeal the Court’s order to the court of appeals once the Court issues its memorandum opinion, which it promised to issue soon.

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.