Court Rejects Key Changes to the NLRB's Union Election Regulations
A federal district court rejected many of the key regulations the National Labor Relations Board (NLRB) recently issued governing union elections. Although the court’s ruling prevented the full, more employer-friendly rule from taking effect on June 1, as previously scheduled, the NLRB announced Monday it would implement in full all rule changes unaffected by the court’s order.
The NLRB’s December 2019 changes scaled back many of the previous rule’s more rigid time constraints, mandating more than a dozen changes to the Board’s election procedures. The NLRB characterized the changes as merely “procedural,” putting the new rule into effect without first releasing it for public comment. Had the Board characterized the changes as substantive, they would have been subject to the notice-and-comment rulemaking processes outlined in the Administrative Procedures Act (APA).
Arguing the changes were, in fact, substantive and therefore not exempt from the APA’s requirements, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) challenged the rule changes in the U.S. District Court for the District of Columbia. While the Board maintained its position that the new rule made only procedural changes, Judge Ketanji Brown Jackson agreed with the plaintiffs, finding “the challenged portions of the regulation at issue are not procedural rules that are exempted from the notice-and-comment rulemaking requirements of the APA, and because each of these specific provisions was promulgated without notice-and-comment rulemaking, each one must be held unlawful and set aside.”
Judge Jackson’s order granted summary judgment as to Count One of the Complaint, which challenged five key provisions:
- Reinstitution of pre-election hearings for litigating eligibility issues
- Timing of the date of election,
- Voter list timing
- Election observer eligibility
- Timing of Regional Director certification of representatives
The remaining 10 provisions unaffected by the court’s order went into effect June 1.
The NLRB intends to appeal the court’s order to the D.C. Court of Appeals. The case is AFL-CIO v. NLRB, No. 20-cv-0675 (D.D.C.).
Please contact Stephanie Poucher or any other member of Phelps’ Labor and Employment team if you have any questions or need compliance advice and guidance.
