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NLRB Announces Modifications to Representation Case Procedures
Practical Law Legal Update w-023-2316 (Approx. 4 pages)
NLRB Announces Modifications to Representation Case Procedures
by Practical Law Labor & Employment
| Law stated as of 23 Oct 2020 • USA (National/Federal) |
The National Labor Relations Board (NLRB) announced modifications to its representation case procedures in order to create a fair and efficient election process.
On December 13, 2019, the NLRB announced that it has made a series of modifications to its representation case procedures. These changes retain the essentials of existing representation case procedures but:
- Clarify and reinstate procedures before an election that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues.
- Permit parties additional time to comply with the various pre-election requirements that became effective in 2015.
- Make several other changes the NLRB deems to be appropriate policy choices.
The Board issued the changes as a final rule, which will be effective 120 days after the December 18, 2019 publication in the Federal Register (Representation-Case Procedures, 84 FR 69524 (Dec. 18, 2019)).
Chairman Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in issuing the proposed rulemaking. Member Lauren McFerran dissented.
UPDATE:
On March 20, 2020, in AFL-CIO v. NLRB, Judge Ketanji Brown Jackson of the US District Court for the District of Columbia issued a Minute Order recognizing that the NLRB on the same day filed a notice that it was extending the effective date for its representation case procedures rule. The NLRB has agreed to voluntarily stay the implementation of its election rule for 45 days, or through May 31, 2020. The AFL-CIO and NLRB are to propose a briefing schedule on the AFL-CIO's challenges to the rule which the court will address in the context of cross-motions for summary judgment, to be reviewed on an expedited basis and with a hearing to be tentatively set for the week of May 11, 2020. (D.D.C. Case No. 20-CV-00675-KBJ.)
On May 30, 2020 and July 1, 2020, in AFL-CIO v. NLRB, the DC District Court issued Orders setting aside portions of the rule while upholding other parts. The NLRB and the AFL-CIO have appealed and cross-appealed the respective grants of summary judgment by the DC District Court (see AFL-CIO v. NLRB, 20-5226 (D.C. Cir.)).
The AFL-CIO also challenged the NLRB's separate rulemaking concerning blocking charges. That case is stayed pending the DC Circuit's determinations on the cross-appeals of the DC District Court's rulings in 20-CV-0675 (see Minute Order, Civ. No. 20-CV-01909 (D.C. Dist. Oct. 23, 2020)). For more information, see Legal Update, DC District Court Strikes Down Part of NLRB's Election Rule Amendments; NLRB Implements and Provides Guidance on Remaining Amendments.