On April 1, 2020, the National Labor Relations Board (the “Board”) finalized a new rule on the union election process, revising its policies concerning blocking charges, voluntary bars, and the process by which unions in the construction industry may establish majority support. Our client alert on the Board’s final rule can be found here. Due to the ongoing national emergency caused by the coronavirus pandemic, the Board has postponed the June 1, 2020, effective date by 60 days. The new effective date is July 31, 2020.
The Board determined that a delayed effective date is required to allow the Board’s employees and stakeholders to focus on continuity of their operations during the coronavirus pandemic, rather than on implementing and understanding the Board’s new rule. The Board dispensed with notice and comment procedures in delaying the effective date of the final rule pursuant to the Administrative Procedure Act (“APA”). Under Section 553(b)(3)(B) of the APA, an agency may issue a final rule without seeking comment prior to rulemaking upon finding of “good cause” that those procedures are “impracticable, unnecessary, or contrary to public interest.” In dispensing with notice and comment procedures to delay the effective date of the final rule, the Board reasoned that: (1) given the ongoing pandemic and national emergency, regulated entities should be focused on mitigating that pandemic’s serious ramifications and on understanding their significant responsibilities and obligations under the pandemic relief laws enacted by Congress in the last month; and (2) proceeding directly to the final rule is appropriate because the change is a minor, technical correction.
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If you have any questions regarding this alert, please do not hesitate to contact us.