A federal judge has struck down major portions of a new set of regulations that modify how union elections are conducted, ruling that the National Labor Relations Board should have given the public a chance to weigh in on those components of the rulemaking.
The court’s decision, issued on May 30, effectively blocked the full regulation from taking effect on June 1, as planned.
The NLRB, which administers elections when a group of workers seek to unionize, issued the final rule in December without first releasing a proposed version for public comment.
The rules make a series of modifications to the board’s protocol for union elections, in effect extending procedural deadlines and allowing for more time between when a union files a petition to the agency to hold an election and the date when workers actually vote on whether to unionize. The new rules also give employers more opportunities to challenge the process at different stages.
The time period between the petition and actual election is considered crucial by businesses and unions because it often represents the peak of the union’s support among workers, and is typically when employers are carrying out or ramping up counter-union campaigns.
Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia agreed with the plaintiff— the AFL-CIO—that parts of the rulemaking went further than merely changing the board’s processes for carrying out union elections, and thus affect the substantive rights of parties involved in such proceedings.
The judge said in a short order that she would strike down the “challenged portions of the regulation,” adding that she would issue a full memorandum opinion shortly. The AFL-CIO argued that the rule in its entirety should be struck down.
The NLRB can and likely will appeal the ruling.