D.C. Circuit: NLRB 2019 Election Rule Not Properly Implemented, Now Stayed


All Employers subject to NLRA


January 17, 2023



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Quick Look

  • NLRB 2019 final rule on union elections is currently stayed and previous regulations are reinstated.
  • Four provisions of the 2019 rule were invalidated on procedural and substantive grounds; although two provisions remained, they are not being implemented pending current litigation and the NLRB’s review of the rule itself.


In AFL-CIO v. NLRB, the D.C. Circuit Court of Appeals stated that portions of the National Labor Relations Board’s (NLRB) 2019 final rule on union elections were not properly implemented. Specifically, the 2019 rule provisions regarding the timeline for submission of employee voter lists, the timeline for certification of election results, and eligibility of election observers, were substantive in nature and did not follow the proper procedures requiring notice and comment periods before issuance. However, the rule’s provisions for pre-election litigation of certain voter eligibility issues and the time period for scheduling elections were procedural and therefore properly enacted.

The D.C. Circuit also held that a provision in the 2019 rule providing for automatic impoundment of ballots under certain circumstances when a petition for review is pending with the Board is contrary to the National Labor Relations Act (NLRA). As a result, previous NLRB regulations for union elections were reinstated.

Subsequently, on March 9, 2023, and in light of the D.C. Circuit ruling, the NLRB announced recission of the four invalidated provisions of the 2019 rule. The Federal Register also filed for public inspection a notice staying the effective date of the two procedural provisions of the 2019 Rule to September 10, 2023. The Board stated it will continue to postpone implementation of these provisions as litigation remains pending and while the Board considers whether to revise or repeal the 2019 Rule. Continue to look for updates on this topic.


Action Items

  1. Have union election procedures updated for compliance.
  2. Review the NLRB rescission here.
  3. Review union election requirements with legal counsel.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase