NLRB rescinds some election rule provisions, delays implementation of others

The National Labor Relations Board has rescinded portions of a 2019 final rule related to union elections and delayed implementation of other provisions. The action complies with a recent decision of the US Court of Appeals for the District of Columbia Circuit, according to NLRB.

The  court’s majority panel “affirmed the district court’s May 2020 decision to invalidate three of the Trump-era election changes that were promulgated without a notice and comment period, finding that they dealt with substantive rather than procedural rights,” attorneys at Littler wrote. The court upheld parts of the rule governing pre-election litigation of certain voter eligibility issues and the timeframe for scheduling elections.

“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,” wrote attorneys for the Proskauer Rose labor-management relations group. 

What this means is, instead of having up to five business days to furnish the voter list following the direction of the election under the 2019 rule, employers will have two business days as they did in 2014. Regional directors are precluded 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. Also, the board rescinded a portion of the rule that limits a party’s selection of election observers to individuals who are current members of the voting unit, whenever possible.

The NLRB is delaying implementation of other provisions of the 2019 rule through Sept. 10 pending further review.

Members Gynne A. Wilcox and David M. Prouty joined Chairman Lauren McFerran in issuing the changes to the 2019 final rule. Member Marvin E. Kaplan dissented, mostly because of the provision to extend the time period to furnish the voter list. 

“The certification-timing rule makes eminent sense — far better sense than the 2014 Rule framework it replaced. I would not rescind it as my colleagues do, but rather repromulgate it — and with it, the voter-list and election-observers rules — for notice-and-comment rulemaking,” Kaplan said.