D.C. Circuit: NLRB 2019 Election Rule Not Properly Implemented, Now Stayed
All Employers subject to NLRA
January 17, 2023
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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.
- Have union election procedures updated for compliance.
- Review the NLRB rescission here.
- Review union election requirements with legal counsel.
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