NLRB Postpones New Election Rules

Last week, the National Labor Relations Board (“NLRB”) delayed the implementation of its revisions to the representation election process. In a Notice published on its website, it stated, “[T]o facilitate the resolution of legal challenges, it is postponing the effective date of its final rule modifying the Agency’s Representation Case Procedures from April 16, 2020 to May 31, 2020.” Currently, the NLRB is defending itself in a lawsuit filed by the AFL-CIO, challenging its right to implement these changes. While there is no mention of COVID-19 in the decision to delay the application of the new election rules, the NLRB recently postponed all elections, including mail ballots, until April 3rd, due to the global pandemic.

Employers were excited about the new election procedure, as it undid many of the “ambush election” rules that were implemented under the Obama Board in 2014, all of which inured to the benefit of employers seeking to engineer a pro-employer campaign. These modifications to the current election process include, among other things:

• Pushing back the pre-election conference to 14 days (from the current 8 days).

• Pushing back the obligation to post a Notice of Petition for Election to 5 days (from the current 2 days).

• Allowing parties to litigate, and the Regional Offices to decide, issues related to unit scope, voter eligibility and supervisory status.

• Giving parties the right to file post-hearing briefs after pre-election hearings.

• Scheduling elections no earlier than 20 days following the pre-election hearing.

Polsinelli will keep you posted on the latest developments on this litigation and the rollout of the new election rules, whether on June 1st or later.