D.C. District Court Holds That Portions of NLRB Rule Rolling Back ‘Ambush Election’ Rules are Unlawful, NLRB Implements Remaining Changes
On December 18, 2019, the National Labor Relations Board (Board or NLRB) published a final rule, which was originally set to become effective on April 16, 2020, and which modified the so-called 2014 “ambush election” rules. As published, the rule lengthened the election process and allowed more issues to be resolved before an election was held, to the relief of many employers. Due to the COVID-19 pandemic, the effective date of the new rule was pushed back to May 31, 2020. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) challenged the rule in the District Court for the District of Columbia alleging that it was not properly enacted by the Board. On May 30, 2020, Judge Ketanji Brown Jackson issued an order concluding that some portions of the rule were not procedural in nature and, therefore, had to be submitted for public notice and comment before being issued in final form. The NLRB has taken the position that other portions of the rule which were not vacated by the court are effective immediately.
The stated purposes of the Board’s 2019 rule include the promotion of orderly litigation, transparency, and fair and accurate voting. To that end, the rules made the following significant changes to the existing election rules:
- Pre-election hearings will generally be scheduled 14 business days from the Notice of Hearing, rather than eight calendar days.
- There will be at least 20 business days between the Direction of Election and the date of an election. Under the current rules, the Regional Director could schedule an election for the earliest practicable date. After the 2014 amendments went into effect, the median number of days between a petition and an election decreased from 38 to 23 days and has remained at 23 days in FY 2019.
- Employers will have five business days from the service of the Notice of Hearing, as opposed to two under the current rules, to post and distribute election notices. Employers also will have five business days, as opposed to two business days, to furnish the voter list following issuance of the Direction of Election.
- Employers will have eight business days from the hearing notice to file and serve the Statement of Position. Under the current rules, the time period is typically seven calendar days.
- When a union files a representation petition, it also will be required to file and serve a Statement of Position, which is not required under the current rules.
- Disputes concerning unit scope and voter eligibility normally will be litigated at the pre-election hearing and resolved prior to the election. Under the current rules, these issues often are not litigated before an election, allowing employees who may not be eligible to vote, including supervisors, confidential employees, and those whose jobs make inclusion in the unit inappropriate.
- Parties may file post-hearing briefs with the regional director following a representation case hearing. Under the current rules, such briefs are permitted only upon special permission.
- If a party requests review of a regional director’s decision within 10 business days, the NLRB will automatically impound ballots.
- Regional directors will not certify election results while a request for review is pending. Under the current rules, regional directors are required to certify election results despite the pendency or possibility of a request for review.
- Election observers generally must be members of the voting unit whenever possible.
The court’s order enjoined implementation of the following portions of these December 2019 rule changes:
- The reinstitution of pre-election hearings for litigating eligibility issues;
- The changes to the timing of the date of the election;
- The voter list timing;
- The election observer eligibility; and
- The timing of the Regional Director certification of representatives.
The NLRB announced on June 1, 2020, that it would implement all of the rule changes which were not affected by the court’s May 30, 2020 order. Peter B. Robb, the NLRB’s General Counsel issued a more detailed memorandum on June 1, 2020, that can be found here, explaining the rule changes now in effect. Additionally, on June 3, 2020, additional guidance was issued on calculations of the dates for hearings and deadlines for position statements under the rules. That memorandum can be found here.
The litigation over these rule changes is ongoing. The NLRB has stated that it intends to appeal the court’s May 30, 2020, order. In reaction to the NLRB’s statement that portions of the rule not affected by the court’s order would immediately go into effect, the AFL-CIO filed a “Motion for Clarification” with the court on June 3, 2020, asking the court to prohibit the NLRB from implementing any portion of the rule without further consideration.
Ballard Spahr's Labor and Employment Group monitors changes in law and policy at the NLRB and routinely assists clients in navigating union election procedures.
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