Judge partially blocks NLRB effort to undo 'quickie election' rule

UPDATE: June 1, 2020: NLRB said Monday it will appeal the court's ruling and, in the meantime, "implement in full" all of the changes unaffected by the court's order. According to the agency, these include hearing scheduling and notice timing. "The Board continues to believe that it followed all legal requirements in issuing the December 2019 amendments to its procedural rules," it said.

Dive Brief:

A federal district court judge partially blocked changes to the National Labor Relations Board’s (NLRB) union election rules May 30, just before they were slated to take effect.
The board was attempting to undo the Obama-era "quickie election rule." While some portions of the December 2019 rule survived, the judge determined that other parts ran afoul of rulemaking requirements, amounting to substantive changes undertaken without a notice-and-comment period.
Among the provisions blocked was an increased campaign period, according to Proskauer Rose LLP attorneys. The order did not vacate extensions with regard to the election process and other provisions but still "effectively prevented any portion of the rule from taking effect this week," the attorneys wrote in a post for the firm.

Dive Insight:

Also known as the "ambush election rule," the Obama-era regulation — which was finalized in 2014 and took effect in 2015 — allowed workers to unionize faster than they previously could.

Since the administration change, NLRB has sought to undo that rule. And while it solicited comments along the way, critics argued it failed to do so once details were nailed down. "[E]ven assuming notice and comment was not legally required, there is no question that the better choice would be to seek the input of workers, unions, employers, legal practitioners, Board regional staff, and other affected stakeholders about any specific proposed changes before rushing them to completion," board member and democrat Lauren McFerran wrote in a dissent in the 2019 final rule. "We owe the public the opportunity to weigh in on something so central to our core mission as an agency."

That 2019 rule, said Barnes & Thornburg Associate Thomas C. Payne in a blog post, "was welcome news to employers, as it dialed back the NLRB’s infamous 2015 ambush election rule by extending several procedural deadlines and allowing for more time between a union petition and election." The attempted rescission of that rule was then opposed by labor groups, including a judicial challenge from the AFL-CIO that led to the May 30 order.

For now, the Obama-era rule stands, according to Proskauer: "Until the NLRB reconsiders the rules in light of the notice-and-comment requirements, or the Court rules otherwise in response to an appeal, the 2014 rules regarding representation election procedures remain in effect."