NLRB Rescinds Four Provisions of the 2019 Election Rule and Delays Implementation of Remaining Provisions After DC Circuit Court Decision

March 09, 2023 Today, the Federal Register filed for public inspection the NLRB’s notice to rescind four provisions from the Board’s Rules and Regulations contained in the Final Rule on representation case procedures published on December 18, 2019. This action complies with a recent decision of the United States Court of Appeals for the District of Columbia Circuit vacating the four provisions. On January 17, 2023, the Court of Appeals issued a judgment ruling that three challenged provisions of the 2019 Final Rule were improperly enacted without notice and comment: (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; and (3) limiting a party’s selection of election observers to individuals who are current members of the voting unit whenever possible. Those provisions have never been in effect because they were previously enjoyed by United States District Court for the District of Columbia. The Court of Appeals 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, which is currently in effect, is contrary to the National Labor Relations Act. The Board’s rule rescinds all four of the provisions struck down by the Court of Appeals and reinstates previous regulations. The Federal Register also filed for public inspection a notice staying the effective date of two other provisions of the 2019 Rule to September 10, 2023. These provisions had been enjoined by the District Court and have never gone into effect. The provisions (1) allow parties to litigate disputes over unit scope and voter eligibility prior to the election and (2) instruct Regional Directors not to schedule elections before the 20th business day after the date of the direction of election. The Court of Appeals found that the Board could lawfully issue these provisions without notice and comment, but remanded the case to the District Court so that it could consider other grounds on which the provisions had been challenged as unlawful. The Board 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. Members Wilcox and Prouty joined Chairman McFerran in issuing the changes to the Final Rule. Member Kaplan dissented.