A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled earlier this month that the National Labor Relations Board violated the Administrative Procedure Act (APA) in 2019 by issuing certain rules governing union election procedures without seeking public comment.
The 2019 Rule – issued by a Trump Board – modified what is colloquially known as the Obama Board’s 2014 “quickie election” rules. The AFL-CIO challenged the 2019 Rule and in 2020, now-Supreme Court Justice Ketanji Brown Jackson (who was, at the time, a district court judge), vacated five of the rules, holding that none fell within the APA’s procedural exception.
The Court of Appeals disagreed in part with Jackson, striking down three of the five challenged rules. The court upheld two of the challenged rules, reasoning that they fell within the APA’s procedural exception to the notice and comment requirement. Under this exception, rules that are primarily directed toward internal agency operations and do not affect the substantive rights or interests of a party are exempt from the notice and comment requirement. A more detailed look at the 2023 ruling is below.
The Court Upheld:
1. Pre-election litigation
Under the 2019 Rule, pre-election disputes concerning unit scope, voter eligibility and supervisory status are usually litigated and resolved before an election is scheduled. Under the 2014 Rule, these issues did not need to be resolved before an election. Instead, those whose eligibility to vote was disputed would vote subject to challenge, and the dispute would be resolved in a hearing after the election only if the vote was determinative.
2. Election scheduling
The 2019 Rule builds in a waiting period of 20 business days between the direction of election and the election itself. By contrast, the 2014 Rule required elections to be scheduled at the earliest date practicable, under which the shortest waiting period was 10 business days.
The Court Struck Down:
1. Voter List
Once the regional director issues a decision and direction of election, the employer must provide the union with a voter list, which includes the names job details, and contact information for eligible voters. Under the 2019 Rule, an employer had five business days from issuance of the direction of election to provide the list. Under the 2014 Rule, the employer had two business days.
2. Delayed Certification
If employees favoring the union win an election and the union is certified as the employees’ representative, the National Labor Relations Act requires the employer to bargain in good faith with the union. However, a party may also file a request for the Board to review the decision and direction of election even after an election has occurred. Parties may also file objections to the conduct of an election with the regional director and, if unsuccessful, seek review from the Board.
Under the 2019 Rule, a regional director could certify the election results only after resolution of any requests for review concerning the decision and direction of election or objections to the conduct of the election and, in the absence of such filings, only after the time for seeking Board review has passed. Under the 2014 Rule, a regional director would certify the election results without regard to whether a request for review was pending or might still be timely filed.
3. Election Observers
Election observers are representatives of the employer and union who monitor the election process and assist the Board Agent in the conduct of the election. Under the 2019 Rule, the preference was for a current member of the voting unit to be an observer. No such requirement existed under the 2014 Rule.
Following the Court of Appeals’ decision, the Board announced that representation cases are proceeding under the rules in effect since the June 2020 district court ruling.
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