Rules & Regulations
* On May 30, 2020, the United States District Court for the District of Columbia issued an order in AFL-CIO v. NLRB, Civ. No. 20-CV-0675, finding five aspects of Section 102 of the Board’s Rules and Regulations, issued in December 18, 2019 amendments to the Board’s representation rules, were unlawfully promulgated. They are therefore not currently in effect. Rather, the prior versions of those rules remain in force.
The chart below lists the provisions found unlawful in the court's order and the prior provisions that now remain in effect. (Sections of the rule are listed only to note where the provisions appear):
|New Rules Found Unlawful||Old Rules Remaining in Effect|
|Section 102.64(a): Giving parties the right to litigate most voter eligibility and inclusion issues prior to the election.||Section 102.64(a): Disputes concerning individuals’ eligibility to vote in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.|
|Section 102.67(b): Instructing that the Regional Director normally will not schedule an election before the 20th business day after the date of the direction of election.||Section 102.67(b): The Regional Director shall schedule the election for the earliest date practicable.|
|Section 102.62(d) and 102.67(l): Mandating that employers furnish the required voter list to the Regional Director and other parties within five business days (rather than the two business days under the 2014 Rules) following the issuance of a direction of election.||Section 102.62(d) and 102.67(l): Mandating that employers furnish the required voter list to the Regional Director and other parties within two business days following the issuance of a direction of election.|
|Section 102.69(a)(5): Limiting a party’s selection of election observers to individuals who are current members of the voting unit whenever possible.||Section 102.69(a)(5): Any party may be represented by observers of its own selection subject to such limitations as the Regional Director may prescribe.|
|Section 102.69(b) and (c): Instructing that the Regional Director will no longer issue certifications following elections if a request for review is pending or before the time has passed during which a request for review could be filed.||Section 102.69(b) and (c): Regional Directors retain the authority to issue certifications notwithstanding the pendency or possible filing of a request for review.|
The previous versions of those rules in context may be found here. For a complete discussion of the new rules currently in effect, please see the General Counsel’s guidance memorandum to the Regional Offices regarding the representation case procedure changes, Guidance Memorandum on Representation Case Procedure Changes, General Counsel Memo 20-07 (June 1, 2020), available at https://www.nlrb.gov/guidance/memos-research/general-counsel-memos.