Federal Court Blocks Key Parts of New Union Election Rules

Author: Robert S. Teachout, XpertHR Legal Editor

June 2, 2020

A federal district court has blocked five key provisions of final rules issued in December 2019 that modify procedures for union representation elections, while allowing other parts of the final rules to take effect.

The court held that the National Labor Relations Board (NLRB) was required to allow for public comment on the proposed version of the blocked regulations before making them final, but failed to do so. The court issued its order just hours before the rules were scheduled to go into effect on May 31. The NLRB has said it will appeal the decision.

The new rules were passed in an attempt to reverse the 2014 "ambush" or "quickie" union election process put in place during the Obama administration when Democrats held the majority on the NLRB. The final rules had increased the time between when a union files a petition with the NLRB to hold an election and when the vote whether to unionize is held by extending procedural deadlines. They also provided employers with more opportunities to challenge the process.

When the now-Republican-led Board issued the final regulations, it claimed that all of the changes were procedural in nature and therefore exempt from the notice-and-comment requirements of the Administrative Procedure Act (APA). The AFL-CIO challenged the rules, arguing they were substantive in nature and therefore subject to all the rulemaking requirements of the APA, and asked the court to strike them down in their entirety.

The court ruled that, because the five specified provisions were not procedural in nature and because the NLRB move forward without notice-and-comment, they were unlawful. The provisions dealt with:

  • 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.

However, the court did not set aside the other provisions of the final rules and sent them back to the NLRB for reconsideration in light of the ruling.

In a statement released June 1, the NLRB again claimed that it had followed all legal requirements in issuing the December 2019 amendments to its procedural rules, and said it will appeal the court's order. In the meantime, the NLRB will implement all the rule changes that are unaffected by the court order, and the NLRB Office of the General Counsel has issued a guidance memorandum regarding implementation of the rules.