A federal district court on May 30 invalidated portions of a rule issued by the present National Labor Relations Board to modify the prior Administration’s regulation (often referred to as the “quickie” or “ambush” election rule) on union representation-case procedures. The Board swiftly responded by announcing that it would implement the remaining portions of the AGC-supported rule as of May 31.
The present Board issued the rule in December 2019 as a final rule without any notice of proposed rulemaking or opportunity for public comment. The Board maintained that the rule was procedural in nature and not subject to notice-and-comment requirements under the Administrative Procedure Act. The AFL-CIO challenged the rule in the U.S. District Court for the District of Columbia, arguing that certain provisions of the rule were substantive in nature and that, therefore, the rule should be invalidated as improperly promulgated. The court agreed that the challenged provisions are substantive and invalid:
- 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 declined to invalidate the entire rule and remanded to the Board for further consideration. The Board decided that it would implement the provisions of the rule that were not invalidated as planned. Those provisions include:
- Scheduling the hearing at least 14 days from issuance of the notice of hearing;
- Posting the notice of election within 5 days instead of 2 days;
- Changes in timeline for serving the non-petitioning party’s statement of position;
- Requiring petitioner to serve a responsive statement of position;
- Reinstatement of Post-Hearing Briefs;
- Reinstating Regional Director discretion on the timing of a notice of election after the direction of an election;
- Ballot impoundment procedures when a request for review is pending;
- Prohibition on bifurcated requests for review;
- Certain changes in formatting for pleadings and other documents; and
- Terminology changes and defining days as “business” days.
On the same day as the Board’s announcement, its General Counsel issued a guidance memorandum on the rule.
The Board also announced that it “continues to believe that it followed all legal requirements in issuing the December 2019 amendments to its procedural rules” and that it intends to appeal the court’s order.