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Trump-era NLRB Union Election Rule Up for Debate at D.C. Circuit

May 14, 2021, 10:00 AM

The National Labor Relations Board will try to persuade a federal appeals court in Washington, D.C., to reinstate several Trump-era changes to its union election procedures that some say benefited employers by lengthening the process for workers to vote.

The U.S. Court of Appeals for the District of Columbia Circuit is set to hear oral argument Friday over whether the NLRB could skip full notice-and-comment rulemaking requirements when it retooled its election regulation. The agency is challenging a district court decision invalidating some of its 2019 amendments, in response to a lawsuit from the AFL-CIO.

The case likely will determine the scope of the NLRB’s 2019 overhaul of deadlines and policies for union elections, which followed to the agency’s 2014 modifications that shortened the voting process. The Obama-era amendments, which went through the full rulemaking process, were derided as the “quickie” or “ambush” election rule by some employer advocates.

The 2019 changes were designed to “allow workers to be informed of their rights” and “simplify the representation process to the benefit of all parties,” then-Chair John Ring, a Republican member who led the NLRB until earlier this year, said when the board issued its rule making the amendments.

But Chair Lauren McFerran, the NLRB’s only Democrat since 2018, said in dissent to the rule that the GOP majority inserted unnecessary delays at every step of the election process—adding nearly two months even in straightforward cases that don’t have disputes requiring litigation.

Longer elections generally favor employers over unions, according to labor law observers. Unions typically reach a high-water mark for support at the point they file for an election, then try to hold onto that backing in the face of employer efforts to peel it away.

In addition to the debate over the 2019 election rule changes, the case also features a separate controversy over which level of federal court should first hear challenges to the NLRB’s administrative rulemakings. Such challenges previously have started in district court, but the agency wants them to begin directly in circuit court.

The AFL-CIO’s separate lawsuit objecting to a different set of election policy changes to the NLRB’s handling of elections has been on hold until the D.C. Circuit resolves the issue about which court they belong in.

NLRB spokeswoman Kayla Blado and AFL-CIO attorney Matthew Ginsburg declined to comment.

Bulk of Rule Survived

Although the NLRB solicited views on amending its election process via a formal request for information in 2017, the agency made its changes two years later without following the rulemaking process that’s normally required by the Administrative Procedure Act.

The NLRB said it didn’t need to provide notice of its proposed changes and get public comment because its rule amending the election framework fell under the APA’s procedural exception.

U.S. District Judge Ketanji Brown Jackson partially disagreed. Ruling on the AFL-CIO’s lawsuit last year, Jackson said parts of the NLRB’s rulemaking went further than merely amending election processes and affected the substantive rights of parties involved in such proceedings.

Jackson struck down five of the roughly 15 major changes in the 2019 rule, including requirements for agency officials to schedule votes at least 20 days after approval of elections, resolve bargaining unit disputes before votes are cast, and wait until the board rules on requests for review before certifying election results.

But Jackson upheld the bulk of the NLRB’s 2019 rule, most notably the provision that requires officials to impound and not count ballots if there’s a challenge to the approval of an election that remains pending after voting.

Procedural v. Substantive

The NLRB told the D.C. Circuit in a brief that Jackson’s analysis of the APA’s procedural exception clashed with circuit precedent for determining whether rules must be subject to notice and comment.

“First, it improperly focuses on the impact of the rules,” the agency’s lawyers said. “And second, even assuming that the impact of a rule was relevant, the district court’s standard takes a narrower view of the procedural exception than has ever been adopted in this Circuit.”

The NLRB pointed to the D.C. Circuit’s 1994 ruling in JEM Broadcasting v. FCC, which said that the Federal Communications Commission’s rule changing how it handled applications for radio licenses was procedural even though it caused the plaintiff to lose out on a license. The circuit court held that a rule is still procedural even if it has substantive effects, according to the NLRB.

The AFL-CIO countered by citing the distinction between procedural and substantive rules from the D.C. Circuit’s 2014 ruling in Mendoza v. Perez, which dealt with U.S. Labor Department modifications to an aspect of its temporary foreign worker visa program.

Under that decision, procedural rules under the APA concern how parties present their views to the agency, while substantive rules significantly alter the rights and interests of parties, the labor federation said in a brief.

The district court should have thrown out the entire rule because the NLRB ignored data that undermined its justification that the election process modifications promoted finality, the AFL-CIO argued.

“That rationale is not only contradictory on its face, it is contradicted by uncontroverted evidence in the record derived from the Board’s own case files,” the AFL-CIO said.

Original Jurisdiction

On the issue of which court should first hear NLRB rule challenges, the agency argued that the National Labor Relations Act section giving circuit courts original jurisdiction for unfair labor practice cases should also apply to litigation over regulations.

The NLRA doesn’t contain the clear congressional intent necessary to “bifurcate judicial review,” such that challenges to board rulings go to circuit court and rules to district court, according to the NLRB.

The AFL-CIO objected to the agency’s reading of the NLRA section on judicial review, claiming that provision and the law as a whole clearly set circuit courts as the starting place for only board orders in unfair labor practice cases.

The labor federation also pointed to D.C. Circuit precedent holding that the default rule is for agency action to begin in district court, which Congress can change with specific statutory language.

The case is AFL-CIO v. NLRB, D.C. Cir., No. 20-05226, oral argument 5/14/21.

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editor responsible for this story: Jay-Anne B. Casuga at