Hunton Employment & Labor Perspectives

On November 4, 2022, the NLRB published a Notice of Proposed Rulemaking (“NPRM”) inviting public comment on a proposal that would rescind and replace the current “Fair Choice and Employee Voice” rule which was adopted by the prior Board-majority on April 1, 2020.  Three distinct policies regarding election-blocking charges, voluntary recognition, and construction industry bargaining relationships are under consideration.  The Board’s stated intent is to return the law in each of these three areas to that which existed prior to the April 1, 2020 rule. 

As we previously reported, COVID-19 has fundamentally changed the way representation elections are conducted.  From March 1 to November 16, 2020, the National Labor Relations Board issued 167 election decisions and, of those, only 2 manual elections have been directed to proceed in that time-frame.  This is a marked change in the Board’s longstanding preference for manual elections.  The overwhelming trend towards mail-in elections was necessitated by the COVID-19 pandemic.

As indicated in our previous blog on this topic, on May 30, 2020, the U.S. District Court for the District of Columbia issued a two page order invalidating five elements of the NLRB’s 2019 election regulation, based on Count One of the plaintiff’s complaint.  On June 7, the court issued its promised memorandum opinion further explaining that order.

The opinion makes three key points.