?The National Labor Relations Board (NLRB) on March 10 in the Federal Register rescinded a portion of a 2019 final rule that had given employers ordered to participate in a secret-ballot union election five days to provide unions with employees’ personal contact information. The NLRB made this rescission in response to a Jan. 17 decision by the U.S. Court of Appeals for the District of Columbia Circuit vacating parts of the rule. The NLRB rescission means employers have only two days to provide the information.
In the same Federal Register rule, the NLRB rescinded three other provisions of the 2019 final rule in addition to the voter list provisions. In a separate Federal Register rule, the NLRB noted that the D.C. Circuit upheld two provisions and these would apply as of Sept. 10. However, the board also said it is considering the repeal or revision of the upheld provisions.
In its rescission rule, the board stated, “This rule is simply an administrative step that reverts the language of the relevant regulations to their pre-2019 versions, to reflect the court order vacating those four provisions of the 2019 final rule.”
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Rescission Opposed
NLRB Member Marvin Kaplan dissented from the rescission. He noted that a 2014 rule’s voter list provisions, which have been reinstated, require the employer to furnish employees’ personal e-mail address and home and cellphone numbers. The rescinded 2019 rule left most of those additional requirements intact, but gave employers more time to meet them, he stated.
The information employers must provide may not be computerized or may be kept in multiple locations, he said. Giving employers more time to compile the voter list would reduce the risk for inaccurate lists. “Because an unacceptably incomplete list is grounds to set aside the results of an election, reducing the potential for inaccuracy also reduces litigation and resulting costs for the parties and the agency,” Kaplan said.
He stated that the rescinded voter-list provisions instead should have been reissued in a notice of proposed rulemaking.
Other Rescinded Provisions
The NLRB also rescinded three other provisions of the 2019 rule that the D.C. Circuit had struck down.
First, under the 2019 rule, a regional director will certify election results only after resolving any requests for review concerning the decision and direction of election or objections to the conduct of the election, or after the time for seeking such board review has passed.
The 2014 rule, which had by contrast gone through notice and comment, provided that a regional director would certify election results without regard to whether a request for review was pending or still might be timely filed.
The appeals court held that the 2019 provisions delaying the certification of election results were substantive and therefore should have gone through notice and comment.
Second, the 2019 rule also noted that election observers play “the indisputably important role” of “representing their principals, challenging voters, generally monitoring the election process, and assisting the board agent in the conduct of the election.”
That rule provided that for in-person elections, any party may be represented by observers of its own selection. Whenever possible, a party should select a current member of the voting unit as its observer, and when no such individual is available, a party should select a current nonsupervisory employee as its observer. Selection of observers is also subject to such limitations as the regional director may provide, the rule stated.
By comparison, the 2014 rule stated that when the election is conducted in person, any party may be represented by observers of its own selection, subject to limitations provided by the regional director.
The AFL-CIO, the plaintiff in this case, argued that the 2019 rule limited unions’ ability to select as observers former employees or union staff members who are less likely to be subject to intimidation.
The appeals court concluded that the election-observer provision was not procedural and should have been subject to the notice-and-comment period.
Finally, the 2019 rule’s impoundment provision said that if a party files a request for review of a direction of election within 10 business days of its issuance by the regional director and the NLRB either grants the request or doesn’t rule on it before the election, all ballots should be impounded and remain unopened pending such ruling or decision. This provision was contrary to the text of the National Labor Relations Act, the appeals court ruled.
Kaplan said he would reissue the three provisions the appeals court held to be substantive, including the voter list provisions, for notice-and-comment rulemaking. He recognized that reissuing the ballot-impoundment provision for notice and comment was not an option.
NLRB Is Considering Repeal of Upheld Provisions
The two provisions of the 2019 rule upheld by the D.C. Circuit and that will take effect in September have not taken effect yet due to a district court injunction, the NLRB said. Staying these provisions until Sept. 10 “would accommodate the pending legal challenges before the district court. Moreover, a stay is necessary and appropriate because the board is currently considering whether to revise or repeal the final rule, including potential revisions to these two provisions.”
The D.C. Circuit upheld the pre-election litigation of certain issues as procedural and something the NLRB could change in the 2019 rule without notice and comment.
In addition, under the 2019 rule, there is a presumptive waiting period of 20 business days immediately following the direction of election to let the board rule on disputes between the parties. The 2014 rule provided that the regional director should schedule the election for the earliest date possible. Changes to timetables are procedural, so notice and comment weren’t needed to make this change, the appeals court concluded.
Kaplan said that a stay in the effective date of the two upheld provisions is unwarranted. He said that the two provisions promote important interests and that the AFL-CIO’s remaining arguments are meritless.
