Sean P. Redmond Sean P. Redmond
Vice President, Labor Policy, U.S. Chamber of Commerce


July 08, 2020


The U.S. District Court for the District of Columbia issued on July 1 an order that expanded on a previous ruling it had issued on May 30 striking down some elements of the National Labor Relations Board’s (NLRB) election procedures rule. The more recent order upheld many aspects of the rule, which the AFL-CIO had challenged—to no one’s surprise—with a lawsuit.

As this blog noted last month, the NLRB in December 2019 released a final rule with changes to union representation election procedures designed to address the Obama-era Board’s so-called “ambush election” rule. That rule had 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 thrust of the AFL-CIO’s challenge was the fact that the NLRB had issued its final rule without first going through the so-called notice and comment period normally required under the Administrative Procedure Act (APA). In most cases, federal agencies must issue a Notice of Proposed Rulemaking (NPRM) and provide the public the opportunity to review the proposal and submit comments, but there are some narrow exceptions, which the NLRB cited as its justification for foregoing the NPRM. Its argument was that the regulation centers on procedural matters that fall under one of the APA exceptions.

On May 30, the same court 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.

In its 52-page order released last week, the court rejected the NLRB’s argument that the case should be handled by the U.S. Court of Appeals for the District of Columbia, which is a higher court, because challenges to Board decisions are heard by federal appeals courts directly. The court also reiterated its view “that no fair assessment of the regulatory provisions leads to the conclusion that the challenged parts of the 2019 Election Rule are mere procedural rules” and provided a lengthy analysis of how they are instead “substantive” rules under the APA.

The court further chided both parties for their apparent “struggle to keep their eyes on the ball” in arguing over the nature of the NLRB’s changes. Regarding the AFL-CIO’s contention that the entire rule should be scrapped because portions of it were not properly promulgated, the court rejected that view, saying “[t]he bottom line is this: at this point, the AFL-CIO has only successfully established that certain parts of the 2019 Election Rule should be struck down as unlawful on notice-and-comment grounds.”

Thus, “the most prudent course of action” was for the court to set aside only the parts of the rule that it found to run afoul of the APA, which it did. That addressed Count 1 in the AFL-CIO’s four-count complaint, but the court did not address the federation’s remaining three counts because “for whatever reason, the AFL-CIO maintained that this Court need not reach its other claims, apparently assuming that the Court would agree with its severability analysis.”

Since the court did not find it necessary to address whether the rule was “arbitrary and capricious” as alleged and invalidate the rule on those grounds, the ball is back in the NLRB’s court. Whether this match is truly over is anybody’s guess, but it’s probably not.

About the authors

Sean P. Redmond

Sean P. Redmond

Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.

Read more