NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
In the past several days, the National Labor Relations Board (NLRB) has taken several steps to adjust its operations in the face of the COVID-19 pandemic sweeping the nation.
Suspension of Representation Elections
On March 19, 2020, the NLRB announced that it would suspend all representation elections, including mail-ballot elections, immediately through and including April 3, 2020. The NLRB based its decision on the need to ensure the health and safety of its employees, and of the members of the public involved in the election process. Further, the NLRB rationalized that, due to the closure of several regional offices and limited operations and significant telework at other offices, it did not feel it would be possible to effectively conduct elections during this period. The NLRB noted that it would monitor the situation to determine whether an extension of the suspension would be necessary. Until then, future election dates will be determined by the Regional Director upon consultation with the parties. The NLRB staff, however, will continue to process petitions and seek to negotiate stipulated election agreements.
Suspension of Trials
On March 19, 2020, the NLRB announced that it was postponing all trials scheduled between then and April 3, 2020 due to the coronavirus and required all Regional Offices to seek the Judges Division's approval to reschedule.
Postponement of Final Rule on Election Procedures
On March 24, 2020, the NLRB announced that, in order to facilitate the resolution of legal challenges brought by the American Federation of Labor and Congress of Industrial Organization ("AFL-CIO"), it is postponing, until May 31, 2020, the effective date of its final rule modifying the Agency's Representation Case Procedures, which was initially to go into effect April 16, 2020. Thus, the election-related amendments will not go into effect any earlier than June 1, 2020. The AFL-CIO had sued on March 6, 2020 contending that the amendments were invalid as the NLRB issued a final rule without first soliciting public comments in a notice of proposed rulemaking.
By way of background, on December 13, 2019, the NLRB issued the final rule amending its procedures for union elections and scaling back the Obama–era "quickie election" rules.1 The final rule does not completely rescind the 2014 amendments to the Board's election rules, but it makes fundamental changes to increase due process for all parties involved. For instance, the final rule amplifies the election timeline by giving employers additional time to comply with pre-election requirements, and clarifies the procedure for litigating and resolving unit scope and voter eligibility issues prior to a union election. The NLRB said in the rulemaking that the amendments were "procedural" changes to the representation case processes and thus exempted from notice-and-comment requirements in the Administrative Procedure Act.
The NLRB has also instituted the temporary closure of several offices and implemented a teleworking policy in response to the COVID-19 pandemic.
- March 15, 2020 – The NLRB temporarily closed the following regional offices: Manhattan, Detroit and Chicago.
- March 16, 2020 – The NLRB instituted an agency-wide teleworking policy.
- March 19, 2020 – The NLRB temporarily closed the Cleveland and New Orleans regional offices.
- March 20, 2020 – The NLRB temporarily closed the San Francisco and Denver regional offices and re-opened the Manhattan regional office.
- March 23, 2020 – The NLRB temporarily closed the Phoenix and Birmingham resident regional offices.
While the NLRB has taken steps to address the necessary delay in business as usual, it is still continuing to operate, including processing petitions and scheduling mail ballot elections agreed-to prior to the suspension. Given the current climate, it appears as though many of these suspensions may be extended, particularly for in-person activities, such as elections and trials, and additional office closures could be forthcoming.
1 Littler published an article summarizing and commentating on this final rule, available here.
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