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The U.S. District Court for the District of Columbia on May 30 issued a decision vacating significant portions of the National Labor Relations Board’s (NLRB) 302-page election procedures rule that was due to go into effect on June 1. The decision is a victory for the AFL-CIO, which filed a lawsuit against the rule on procedural grounds. It argued that the NLRB violated the Administrative Procedures Act (APA) by failing to publish a Notice of Proposed Rulemaking (NPRM), which is normally required for agency regulations.
As this blog wrote at the time, the NLRB in December 2019 released its much-anticipated changes to union representation election procedures designed to address the Obama-era Board’s so-called “ambush election” rule. That rule made significant changes to the procedures in representation cases that were designed to undermine employers’ rights during the process and limit the ability of employees to hear from both sides in a unionization campaign.
The recent final rule’s changes included provisions dealing with statements of position, pre-election hearings, post-hearing briefings, the timeline for representation elections, and the standards for review by the Board. In general, these changes provided more time for employers to respond to representation petitions and restored employers’ rights that had been denied them under the ambush election rule.
When the NLRB released its December 2019 rule, it did so by issuing it directly as a final rule without first publishing an NPRM, which gives the public a specified period of time to file comments about the proposal. Such NPRMs are required for most federal rules, but there also exists an exception for matters that are procedural rules an agency wishes to follow. The NLRB cited that exception as its reason for not publishing an NPRM, which it did over the objections of outgoing Board member Lauren McFerran.
Not surprisingly, the AFL-CIO challenged the final rule with its lawsuit and asked the federal district court to issue an injunction preventing it from going into effect, which is more or less what it did in a brief, two-page order at the proverbial eleventh hour.
The decision found that “the challenged portions of the regulation at issue are not procedural rules that are exempted from the notice-and-comment rulemaking requirements of the APA. … and because each of these specific provisions was promulgated without notice-and-comment rulemaking, each one must be held unlawful and set aside.” However, the court declined to vacate the other portions of the rule and remanded the matter back to the NLRB for its consideration.
This is not the first time an agency has been sent back to the drawing board by the same court over the same issue, and given the court’s decision, the NLRB essentially has three options: it can choose to appeal the district court’s ruling to the U.S. Court of Appeals for the District of Columbia Circuit; it can start over by issuing an NPRM with the provisions that were struck down (and others it might wish to propose); or it can do nothing, in which case the vacated changes would simply not take effect. What it will decide to do remains to be seen.