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NLRB delays representation-case procedures direct final rule effective date to May 31

By Pamela Wolf, J.D.

The final rule, issued without notice and comment, upended the Obama-era rule that was promulgated through the public scrutiny process.

On March 24, the National Labor Relations Board announced that it is postponing the effective date, from April 16, to May 31, 2020, of its final rule modifying Representation Case Procedures. The Board said that it’s making the move “to facilitate the resolution of legal challenges,” and that the notice would be published later in the same week.

No notice or comment. Without notice and comment, the Board on December 13, 2019, released a final rule on representation-case procedures that upended the Obama-era rule promulgated through the public notice and scrutiny process, citing “the Board’s clear regulatory authority to change its own representation case procedures” and its “longstanding practice of evaluating and improving its representation case procedures” (see NLRB issues direct final rule on representation-case procedures, December 13, 2019).

Dissenting, Member Lauren McFerran questioned the timing, the method, and the need for changes made to the final rule.

The Trump-era final rule, which was published in the Federal Register December 18, 2019, was slated to go into effect April 16, 2020.

Modifications. Announcing its delay of the effective date, the Board said that the modifications contained in the final rule:

  • Retain the essentials of the existing representation rules but allow for a fairer and more-efficient election process.
  • Include clarifications to procedures prior to an election that better ensure the opportunity for litigation and resolution of unit scope and voter eligibility issues.
  • Permit parties additional time to comply with the various pre-election requirements instituted in 2014.

Not all stakeholders agree that the direct final rule’s modifications “allow for a fairer and more-efficient election process.”