January 23, 2023

Federal Appeals Court Invalidates Portion Of NLRB Election Rules

In a 2-1 decision on January 17, the U.S. Circuit Court of Appeals for the District of Columbia, the second highest federal court in the country, affirmed in part and reversed in part a lower court decision invalidating parts of a 2019 National Labor Relations Board (NLRB) rule aimed at slowing down the union representation election process.

As Connecting the Dots readers will recall, in December 2019, the Trump administration’s NLRB modified Obama-era election rules by:

  • Extending the time for an employer to provide a voter list for union elections from two to five business days;
  • Eliminating the issuance of certification of an election by a regional director until the time has passed during which a request for review could be filed;
  • Requiring election observers to, whenever possible, be a current member of the voting unit;
  • Requiring pre-election litigation of disputes “concerning unit scope, voter eligibility and supervisory status” before an election is directed; and
  • Requiring that an election not be scheduled until the 20th business day after the date of the direction of the election.

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) sued the Trump-era NLRB claiming it violated federal law by promulgating these provisions without taking public comment. A district court agreed and, last week, the circuit court did as well, striking down the more generous deadline for employers to turn over workers’ contact information, the delay in the certification of election results when employers challenge officials’ decisions to hold elections, and the limit on whom unions may designate as their election watchdog.

The court left in place the other two changes. In a statement last week, the NRLB said it was determining how to proceed.

Read more about the ruling here. Read more about this issue from MSCI’s partners at the Coalition for a Democratic Workplace here.

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