[Federal Register Volume 88, Number 164 (Friday, August 25, 2023)]
[Rules and Regulations]
[Pages 58075-58076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18130]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102

RIN 3142-AA12


Representation Case Procedures

AGENCY: National Labor Relations Board.

ACTION: Final rule; stay of effective date.

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SUMMARY: On March 10, 2023, the National Labor Relations Board (Board) 
stayed two provisions of its 2019 final rule (``2019 Final Rule'') 
amending its representation case procedures. The two provisions, which 
have never been in effect, were stayed until September 10, 2023 to 
account for new court decisions and because the Board was considering 
whether to revise or rescind the 2019 Final Rule, including potential 
revisions to the two provisions. In a rule that published in this 
edition of the Federal Register, the Board rescinds those provisions, 
among other changes. In light the new rule, and to ensure the two 
provisions do not go into effect for only a short period of time, the 
September 10, 2023 stay of the two provisions is extended to December 
26, 2023, the date on which the rule repealing the two provisions is 
effective.

DATES: As of August 25, 2023, the amendments to 29 CFR 102.64(a) and 29 
CFR 102.67(b) in the final rule that published at 84 FR 69524, on 
December 18, 2019, and delayed at 85 FR 17500 (March 30, 2020) and 88 
FR 14913 (March 10, 2023), are stayed from September 10, 2023, until 
December 26, 2023.

FOR FURTHER INFORMATION CONTACT: Roxanne L. Rothschild, Executive 
Secretary, National Labor Relations Board, 1015 Half St. SE, 
Washington, DC 20570-0001, (202) 273-2940 (this is not a toll-free 
number), 1-866-315-6572 (TTY/TDD).

SUPPLEMENTARY INFORMATION: On December 18, 2019, the Board published 
the 2019 Final Rule amending various aspects of its representation case 
procedures. Representation-Case Procedures, 84 FR 69524 (Dec. 18, 
2019). The Board published the 2019 Final Rule as ``a procedural rule 
which is exempt from notice and public

[[Page 58076]]

comment . . . as a rule of `agency organization, procedure, or 
practice.' '' Id. at 69587. On March 30, 2020, the Board delayed the 
effective date of the 2019 Final Rule to May 31, 2020. Representation 
Case Procedures, 85 FR 17500 (Mar. 30, 2020).
    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, 
vacating five provisions of the 2019 Final Rule and enjoining their 
implementation. 466 F. Supp. 3d 68 (D.D.C. 2020). The District Court 
concluded that each of the five provisions was substantive, not 
procedural, in nature, and that the Board therefore violated the 
Administrative Procedure Act by failing to use notice and comment 
rulemaking. Id. at 92.
    On January 17, 2023, the United States Court of Appeals for the 
District of Columbia Circuit issued a decision and order reversing the 
District Court as to two of the five provisions, agreeing with the 
Board that those provisions were procedural in nature and not subject 
to notice and comment rulemaking. AFL-CIO v. NLRB, 57 F. 4th 1023, 
1043-1046 (D.C. Cir. 2023). The two provisions are: (1) an amendment to 
29 CFR 102.64(a) allowing the parties to litigate disputes over unit 
scope and voter eligibility prior to the election; \1\ and (2) an 
amendment to 29 CFR 102.67(b) instructing Regional Directors not to 
schedule elections before the 20th business day after the date of the 
direction of election.\2\ The D.C. Circuit remanded the case to the 
District Court to consider two counts in the complaint that challenge 
those two provisions and that remain viable in light of its decision.
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    \1\ 84 FR at 69593.
    \2\ 84 FR at 69595.
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    Due to the District Court's injunction, these two provisions had 
never taken effect. Accordingly, before the D.C. Circuit's mandate 
issued on March 13, 2023 and the District Court's injunction was 
lifted, the Board changed the effective date of the two provisions from 
the original May 31, 2020 effective date to September 10, 2023, 
approximately six months from the D.C. Circuit's mandate. 
Representation Case Procedures, 88 FR 14913 (Mar. 10, 2023). The Board 
determined that a delayed effective date was necessary and appropriate, 
in part, because it was considering whether to revise or repeal the 
2019 Final Rule, including potential revisions to the two provisions. 
Id.
    In a final rule published in this issue of the Federal Register, 
the Board has decided to repeal those two provisions, as well as other 
provisions in the 2019 Final Rule. In light of today's rule, the Board 
has decided to stay the effective date of the two provisions from 
September 10, 2023 to December 26, 2023, the effective date of the rule 
repealing the two provisions. A further stay of these provisions will 
avoid the possible waste of administrative resources and public 
uncertainty if the provisions were to go into effect only for a short 
period of time before their repeal. Because the two provisions have 
never been in effect, the amendment to their effective date merely 
extends the status quo.
    This change in effective date is published as a final rule. The 
Board considers this rule to be a procedural rule that is exempt from 
notice and public comment, pursuant to 5 U.S.C. 553(b)(A), because it 
concerns a rule of ``agency organization, procedure, or practice.''

Dissenting Opinion of Member Kaplan

    Today, my colleagues once again stay the implementation of the 
unit-scope-and-eligibility and 20-days rules, both of which were part 
of the 2019 Final Rule. They do so because, in a companion final rule 
issued today, they have decided to repeal these two provisions, along 
with other provisions of the 2019 Final Rule. I disagree with my 
colleagues' decision to rescind these two provisions and with their 
concomitant decision to stay implementation for the reasons stated in 
my dissent to their earlier stay, Representation Case Procedures, 88 FR 
14913, 14914-14916 (March 10, 2023), and my dissent to the companion 
final rule issued today.

    Dated: August 18, 2023.
Roxanne L. Rothschild,
Executive Secretary.
[FR Doc. 2023-18130 Filed 8-24-23; 8:45 am]
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