National Labor Relations Board Publishes Two Federal Register Notices Revising December 2019 Representation Case Procedures Final Rule
The National Labor Relations Board (NLRB) released a final rule publishing in tomorrow’s Federal Register rescinding four provisions from the NLRB’s December 2019 final rule on representation case procedures to comply with a recent decision of the United States Court of Appeals for the District of Columbia Circuit (DC Circuit) vacating the four provisions.
On January 17, 2023, the DC Circuit invalidated the following four provisions of the 2019 final rule: (1) the provision allowing employers up to five business days to furnish the voter list following the direction of election; (2) the portion precluding Regional Directors 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; (3) the language limiting a party’s selection of election observers to individuals who are current members of the voting unit whenever possible; and (4) the provision in the 2019 final rule that allowed for the automatic impoundment of ballots under certain circumstances when a petition for review is pending with the NLRB. The new final rule would rescind all four provisions struck down by the D.C. Circuit and reinstates previous regulations regarding representation case procedures.
Additionally, the NLRB issued a separate notice delaying the effective date of two other provisions of the 2019 final rule to September 10, 2023. These provisions include: (1) allowing parties to litigate disputes over unit scope and voter eligibility prior to the election; and (2) instructing Regional Directors not to schedule elections before the 20th business day after the date of the direction of election. The delay is in response to the D.C. Court of Appeals finding that the NLRB could lawfully issue these provisions without notice and comment, but remanding the case to the District Court so that it could consider other grounds on which the provisions had been challenged as unlawful.
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