Hunton Employment & Labor Perspectives

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.

In mid-May the NLRB established a clear rule regarding stray marks on ballots in union representation elections, eradicating years of convoluted and inconsistent precedent. The decision, which applied retroactively, resulted in a union’s failure to amass a majority of the votes and, consequently, a reversal of the Regional Director’s Decision and Certification of Representation.

In a dispute between Providence Portland Medical Center (the “Employer”) and Service Employees International Union Local 49 (the “Union”), the representation election was decided by the narrowest margin, ultimately resulting in 383 votes for representation, and 382 votes against representation. Included in the mix was a single ballot with a clear “X” in the “Yes” box and a dark diagonal line with a smudge mark in the “No” box. The ALJ and Regional Director applied Board precedent and both concluded that the smudge mark on the diagonal line in the “No” box was an “obvious attempt at erasure,” resulting in the ballot being counted in favor of representation.

The last few weeks of a National Labor Relations Board Member’s term can be a busy time.  This is especially true when a Member’s imminent departure will leave the Board without any Members from the minority political party.  The Board historically has avoided major shifts in precedent without the participation of both parties.

Last month was no different.  As the clock wound down on Democrat Lauren McFerran’s term this December, the Board issued a flurry of significant rules and opinions that pare back many of the most anti-employer precedents set during the Obama-era.  Issuing these rulings prior to Member McFerran’s departure allowed the Board to include her dissenting views in most cases.  But ultimately, the Republican-majority prevailed–resulting in good news for employers going forward on multiple fronts.  We summarize the Board’s “December to Remember” below.

Yesterday, the National Labor Relations Board published a final rule modifying its representation case procedures.

The final rule takes effect April 17, 2020, and scales back—but does not completely undo—the changes to election regulations instituted by the Obama-era’s Board that have caused employers heartburn since 2015. Those changes effectively sped up the election process and cut down on employers’ ability to litigate many important legal issues prior to voting, putting employers at a disadvantage.

We previously have discussed that, as expected, the implementation of the NLRB’s ambush election rules in April 2015 considerably shortened the average time between the date of a petition being filed by a union and the date of election.  This change substantially impacts the employer’s ability to conduct an effective campaign in the event of a union petition.