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U.S. Judge Upholds Bulk of Labor Board’s Union Election Rules

July 2, 2020, 5:21 PM

A Washington court has revised its previous decision striking down major portions of a new set of regulations lengthening the process of unionization in the private sector.

Taken as a whole, the National Labor Relations Board’s rulemaking relied on sufficient reasoning to survive the AFL-CIO’s challenge under a federal law that bans “arbitrary” regulations that aren’t pegged to some reasonable justification, the U.S. District Court for the District of Columbia held July 1.

Judge Kentanji Brown Jackson didn’t overturn her earlier ruling that invalidated some significant proposed measures, including changes that gave employers more leeway to challenge and litigate certain issues prior to a unionization election, and imposed a 20-business-day waiting period between when agency officials approve an election and the date the election is to take place.

But she clarified that one of the most significant proposals, which requires officials to impound and not count ballots if there’s a challenge to the approval of an election that remains pending after voting, was also sufficiently reasoned to clear the bar against “arbitrary and capricious” rules.

The ruling bolsters the NLRB’s arguments on appeal that the still-surviving portions of the rulemaking should remain on the books. The agency already announced that it will appeal the earlier ruling issued on May 30, and has moved to implement the surviving parts of the set of regulations.

“The court concluded the Board’s Rule was the product of reasoned decision making and issued in full compliance with all relevant legal requirements, including the Administrative Procedure Act,” NLRB Chairman John Ring said in a statement Thursday. “While the court previously enjoined certain provisions of the Rule, the Board is confident that all provisions of its Election Procedures Rule will eventually be upheld on appeal and put into full effect as soon as possible.”

“We are disappointed that the Court did not hold the NLRB to a higher standard,” AFL-CIO general counsel Craig Becker told Bloomberg Law in an e-mail today. “We continue to believe that rational rulemaking requires an agency to consult its own data concerning case processing before changing the rules and that if the Board had done so in this case it would have” reached different conclusions.

The unions argued in the case that the impoundment procedure would allow employers to prolong the certification of a union simply by filing a challenge to officials’ decision to approve a union election.

“The NLRB apparently believes that an impoundment practice best furthers the objectives of transparency, mootness, and certainty, which is not an entirely irrational or unreasonable view,” Jackson said, adding “it is the agency’s prerogative to weigh the downsides of the proposed policy change (such as the ones that the AFL-CIO now perceives) against the beneficial outcomes that the agency is seeking,” Jackson said.

The “narrow” scope of the Administrative Procedure Act doesn’t allow courts to substitute their judgment for that of an agency, and it “suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates,” the judge said.

The case is AFL-CIO v. NLRB, D.D.C., No. 1:20-cv-00675, 7/1/20.

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

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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