Thursday, the NLRB issued a notice to rescind four provisions from the Board’s Rules and Regulations contained in its Final Rule published in December 2019 (the “2019 rule”). The Board’s notice rescinding all four provisions, which were struck down by the Court of Appeals for the D.C. Circuit in January (discussed here), resurrects the previous regulations.

The 2019 rule contained several provisions pertaining to the “quickie” election rules of 2014 (the “2014 rule,” which we discussed here).  However, the Court of Appeals affirmed a federal district court decision vacating three provisions to the 2019 rule as improperly enacted without notice and comment and further held a fourth provision was contrary to the NLRA.  The four provisions (and the first three provisions’ 2014 rule predecessors) were as follows:

  • allowing employers up to five business days to furnish the voter list following the direction of election (from two business days under the 2014 rule);
  • precluding Regional Directors from issuing certifications following elections if a request for review is pending or during the time in which a request for review could be filed (the 2014 rule directed Regional Directors to certify elections regardless of whether a request for review had been filed);
  • limiting a party’s selection of election observers to individuals who are current members of the voting unit whenever possible (the 2014 rule permitted any observer of the parties’ choosing, subject to the Regional Director’s limitations); and
  • providing for automatic impoundment of ballots under certain circumstances when a petition for review is pending.  Practically, if an employer fails to get a pre-election hearing and quickly goes to an election, the ballots will not be impounded pending the employer’s request for review of the election.  If the challenged ballots are not greater than the difference in “Yes” vs “No” votes, the Region could certify the union even while the employer is in the process of appealing to the full Board.

The Board’s movement regarding these changes is swift.  While normally there would be at least a thirty-day delay of implementation of the final rule, the Board stated it had good cause to waive that requirement as “this rule implements a court order….”  (See here for the Final Rule)

The Federal Register also filed for public inspection a notice staying the effective date of two provisions of the 2019 rule pertaining to pre-election litigation of certain disputes (voter eligibility, unit scope, and supervisory status) and election scheduling (establishing a presumptive waiting period of twenty business days between the Regional Director directing an election and the election date).  These provisions never went into effect, having been enjoined by the District Court.

Takeaways

While litigation remains pending regarding the legality of two provisions, the Board’s step to rescind the four provisions signals a concession by the Board to the Court of Appeals ruling.  As a result, this dims hope for the time being that these provisions of the 2019 rule would return bargaining parties to an era before the “quickie” election rules of 2014.  The Board is still considering whether it will revise or repeal the 2019 rule.  In the meantime, parties will continue to operate under the 2014 rule provisions, largely to the detriment of the employer.

As always, we will continue to monitor any developments.

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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 Yonatan Grossman-Boder Yonatan Grossman-Boder

Yonatan (Yoni) Grossman-Boder is an associate in the Labor & Employment Law Department. Yoni assists clients in a wide range of labor and employment law matters, including litigations, administrative proceedings, arbitrations, internal investigations, labor-management relations and claims of employment discrimination, harassment, retaliation, and…

Yonatan (Yoni) Grossman-Boder is an associate in the Labor & Employment Law Department. Yoni assists clients in a wide range of labor and employment law matters, including litigations, administrative proceedings, arbitrations, internal investigations, labor-management relations and claims of employment discrimination, harassment, retaliation, and wrongful termination. He frequently represents clients across a variety of industries and sectors, including educational institutions, financial services, media and entertainment companies, health services and professional services.

Yoni clerked for the Honorable Richard M. Gergel of the U.S. District Court for the District of South Carolina.  While attending Duke University School of Law, Yoni served as the publication and lead articles editor of Law and Contemporary Problems.

Prior to coming to Proskauer, Yoni served as a legal intern at the New York Human Resources Administration Employment Law Unit. As a legal intern, he worked on a variety of employment matters, including employment discrimination investigations and litigation. While a summer associate at Proskauer, Yoni co-authored an article on retiree health care benefits under ERISA titled “Understanding M&G Polymers v. Tackett,” published by Benefits Magazine in April 2015.

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.