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.

On June 1, the NLRB’s General Counsel issued GC Memo 20-07, which provides a detailed analysis of those amendments to representation case processes that were not struck down by the district court and have since been implemented by the Board. This memo should provide helpful insight for companies receiving petitions filed on or after June 1, 2020.

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.

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Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations 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 providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

Steve’s litigation experience includes work on matters before state and federal courts, the Equal Employment Opportunity Commission, the Connecticut Commission on Human Rights and Opportunities, the New York State Division of Human Rights and various other administrative agencies. He has litigated matters involving age, race, national origin, gender and disability discrimination, wage and hour, whistleblower and wrongful termination claims.

While attending the Syracuse University College of Law, Steve served as the editor-in-chief of the Syracuse Science and Technology Law Reporter. He also received the Robert F. Koretz scholarship, awarded in recognition of excellence in the study of labor law.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Austin McLeod Austin McLeod

Austin D. McLeod is an associate in the Labor & Employment Law Department. Austin assists clients in a wide range of labor and employment matters, including litigations, administrative proceedings, internal investigations, labor-management relations and claims of discrimination, harassment, retaliation, wrongful termination, defamation, and…

Austin D. McLeod is an associate in the Labor & Employment Law Department. Austin assists clients in a wide range of labor and employment matters, including litigations, administrative proceedings, internal investigations, labor-management relations and claims of discrimination, harassment, retaliation, wrongful termination, defamation, and breach of contract. He represents clients in a variety of industries, including health services, professional sports, real estate, and finance.