In a divided decision handed down yesterday, January 17, the United States Court of Appeals for the D.C. Circuit partially affirmed the decision of a federal District Court eliminating, in part, aspects of an employer-friendly 2019 Rule put in place by the National Labor Relations Board (“NLRB”) to “ensure fair and accurate voting, transparency, uniformity, certainty and finality, and efficiency” in the union election process by, in effect, slowing some of the Obama-era NLRB’s “quickie election” procedures.  More specifically, in the 2019 Rule, the Board, among other measures, lengthened the amount of time employers had to provide eligible voter lists, required certification of union election results only after the time for a review process had passed, and tightened eligibility parameters for union election observers.  These moves undid a slate of changes related to representation elections that the Board had promulgated in 2014 (the “2014 Rule”).   The Board had issued the 2019 Rule without notice or comment, asserting that it fell within the Administrative Procedure Act’s (“APA”) exception for “rules of agency organization, procedure or practice.”   

The AFL-CIO filed suit challenging the 2019 Rule in the District Court as arbitrary and capricious.  In doing so, it focused on five provisions of the 2019 Rule, including those related to:

• Voter lists: providing an employer 5 business-days to provide a union and the Board with the names, job details, and contact information for all eligible employee-voters (as opposed to the 2 business days previously provided by the 2014 Rule);
• Delayed certification: allowing a Regional Director to certify union election results only after she has “resolved any requests for review concerning the decision and direction of election or objections to the conduct of the election or, in the absence of such filings, after the time for seeking Board review has passed.”  This is in contrast to the 2014 Rule allowing a Regional Director to certify election results regardless of whether a request for review was pending or could still be filed;
• Election observers: providing that for manual or in-person elections “a party shall select a current member of the voting unit as its observer, and when no such individual is available, a party should select a current nonsupervisory employee as its observer.”  The 2014 Rule stated that “any party may be represented by observers of its own selection . . . .”  
• Pre-election litigation of voter eligibility, unit scope and supervisory status:  stating that “[d]isputes concerning unit scope, voter eligibility and supervisory statutes will normally be litigated and resolved by the Regional Director before an election is directed,” whereas the 2014 Rule said that such disputes did not need to be litigated or resolved before an election; and  
• Election scheduling:  building in a presumptive waiting period of 20 business days immediately following the direction of an election to allow the Board to rule on disputes between the parties (in contrast to two weeks under the 2014 Rule).

The District Court ruled that none of the challenged provisions fell within the APA’s procedural exception and were therefore all invalid.  On appeal, the DC Circuit disagreed with the District Court with respect to two aspects of the 2019 Rule that it deemed “procedural” and, therefore, could remain in place – i.e., the provisions of the 2019 Rule requiring certain disputes be resolved before an election and lengthening the election time line. 

With respect to the remaining provisions of the 2019 Rule related to eligible employee-voter lists, delayed certification of election results, and election-observer eligibility, the Circuit agreed with the lower court ruling that these aspects of the 2019 Rule fell outside the APA’s limited exceptions to its notice and comment requirements because they govern or directly affect the substantive rights of employers, unions and employees “in relation to one another during representation elections.”

What this means for employers:  Employers dealing with union election issues should be aware that this ruling means that the 2014 Rule remains in place with respect to voter lists, delayed certification and election observers, and employers should proceed pursuant to the requirements set forth in the 2014 Rule.  Current election procedures thus include some of the NLRB’s “quickie election” requirements alongside more employer-favorable timeframes from the 2019 Rule. 

Ballard Spahr routinely advises employers on union organizing and union elections matters.

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