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Law360 (March 20, 2020, 6:05 PM EDT ) The National Labor Relations Board has agreed to hold off on implementing a new rule slowing down the union election process, telling the D.C. federal judge overseeing an AFL-CIO challenge Friday that it would push back the rule's effective date 45 days.
According to the NLRB's notice, the agency will suspend the rule's mid-April effective date until May 31, "pursuant to the court's request." The notice said the agency made the decision Thursday, the same day it canceled all union elections through April 3 in response to the "extraordinary circumstances related to the COVID-19 pandemic."
Craig Becker, general counsel for the AFL-CIO, told Law360 in a statement Friday that they are "pleased that the NLRB acted responsibly at the court's request during this public health crisis and delayed the effective date of the rule."
"This will permit all of us to focus on much more immediate and serious concerns and give the court an adequate amount of time to consider the serious legal issues raised by the board acting without notice or comment or consideration of the available data in promulgating the rule," Becker said.
Earlier in March, the AFL-CIO sued the NLRB over the December rule, which scaled back regulations finalized by the board in 2014 that were meant to streamline the process for workers to vote on whether they want to be represented by a union. Although the new rule didn't tear up the 2014 regulations, it did modify parts of the Obama board's rule to expand the time frame for holding elections.
The 2019 regulation was issued directly as a final rule without the board first soliciting public feedback in a notice of proposed rulemaking, as federal agencies usually do before they adopt new regulations. The agency said in the rule that the changes were "procedural" amendments to its representation case processes, which exempted the rule from notice-and-comment requirements.
But the AFL-CIO argued in its suit that the board violated the Administrative Procedure Act by issuing the rule without giving the public any notice or a chance to provide input. The labor federation also said the rule was "inconsistent" with the National Labor Relations Act and that the board's actions in issuing it were "arbitrary and capricious."
A representative for the NLRB declined to comment Friday.
The AFL-CIO is represented by Leon Dayan of Bredhoff & Kaiser PLLC and James B. Coppess, Matthew J. Ginsburg and Maneesh Sharma of the AFL-CIO legal department.
The NLRB is represented in-house by Assistant General Counsel William G. Mascioli, Supervisory Attorney Helene D. Lerner and Portia Gant and Molly G. Skyes.
The case is American Federation of Labor and Congress of Industrial Organizations v. NLRB, case number 1:20-cv-00675, in the U.S. District Court for the District of Columbia.
--Additional reporting by Vin Gurrieri and Braden Campbell. Editing by Stephen Berg.
For a reprint of this article, please contact reprints@law360.com.
