NLRB Announces Changes to Election Rules After D.C. Circuit Decision

On March 9, 2023, the National Labor Relations Board (NLRB) filed public notice of its intention to rescind four provisions from its 2019 election rule changes. This follows a January 17, 2023, divided precedential decision from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, which nixed these four election rule changes that the NLRB made unilaterally while leaving all other provisions undisturbed. The majority distinguished between “procedural” rule changes, which are made for the ease of an agency (and therefore do not require giving the public notice and an opportunity to comment), and “substantive” rule changes, which appreciably alter parties’ rights and interests (and consequently are subject to the notice and comment process).

The Federal Register recently filed public notice of the NLRB intention to rescind four provisions from Rules and Regulations on representation case procedures previously published on December 18, 2019.

This is consistent with a recent divided precedential decision from a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit. 

The below rules will be rescinded, although it is important to note that these provisions have never been in effect because they were previously enjoined by a Judge in the United States District Court for the District of Columbia:

1. Allowing employers up to five business days to furnish the voter list following the direction of election
2. 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. Limiting a party’s selection of election observers to individuals who are current members of the voting unit whenever possible

The rule providing for automatic impoundment of ballots under certain circumstances, when a petition for review is pending with the Board, will also be rescinded. This rule is currently in effect.

If you have any questions about how this, or any other, labor and employment law development may affect your business, please contact Alexander V. Batoff at alexander.batoff@stevenslee.com or the Stevens & Lee attorney with whom you regularly work.