Welcome
Daily Labor Report®

Court Strikes Down Major Parts of NLRB Union Election Rules

May 31, 2020, 1:42 AM

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 Saturday decision effectively blocks the full rule 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 American Federation of Labor and Congress of Industrial Organizations—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 because it isn’t adequately justified, and added that specific portions are also arbitrary and unlawful for additional reasons.

Those sections include changes that gave employers more leeway to challenge and litigate certain issues prior to the election; required a 20-business-day waiting period between when agency officials approve an election and the date the election is to take place; and required officials to impound and not count ballots if a party’s challenge to the approval of an election remains pending after voting.

The court upheld some portions of the election rules, including prolonging a series of deadlines over the course of the union elections process. Those parts will be remanded to the agency for reconsideration in light of the judge’s opinion.

Rules that pertain to agency procedures aren’t subject to notice-and-comment requirements under federal regulatory law, but substantive rules have to be vetted with the public before they’re finalized.

The NLRB argued that its rulemaking was a procedural rule, not a substantive one. The agency told Bloomberg Law it’s reviewing the decision over the weekend and will issue a statement Monday.

Unions and worker advocates contend that a longer period between a petition and the resulting election date gives employers greater opportunity to mount counter-union campaigns, while business organizations argue the rule would allow more time for workers to learn about the requirements of unionization.

“We are grateful for the careful consideration we received from the court,” AFL-CIO general counsel Craig Becker told Bloomberg Law.

Judge Jackson “has now vindicated the important policy of allowing public input through notice and comment before an agency promulgated important rules like those governing representation elections,” he said in a Saturday email.

The NLRB can appeal the ruling.

The case is AFL-CIO v. NLRB, D.D.C., No. 1:20-cv-00675, order 5/30/20.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.