Nlra Case Notes

• Publication year: 2023
• Author: Maria Myers

NLRA CASE NOTES

AUTHORS^*

Maria Myers

Hannah Weinstein

FOLLOWING D.C. CIRCUIT DECISION, NLRB PUBLISHES UPDATED ELECTION RULES IN FEDERAL REGISTER

AFL-CIO v. NLRB, 57 F.4th 1023 (D.C. Cir. 2023)

In January 2023, the District of Columbia Circuit Court held that two aspects of the National Labor Relations Board's (NLRB or Board) 2019 election rule changes were validly promulgated without notice and comment, while three were not.

In 2014, the Board promulgated amended rules related to representation cases following public notice and comment, while taking the position the public notice and comment was not required by law. In 2019, the Board promulgated new rules without public notice and comment, relying on an exception in the Administrative Procedure Act (APA) exempting rules related to an agency's procedures.

The AFL-CIO challenged various aspects of the 2019 rule, including arguing that five changes should not be exempt from public notice and comment: (1) allowing employers to provide a voter list to the union petitioning to represent the employer's employees within five business days from the issuance of a direction of election rather than within two business days; (2) certifying a union only after resolving any requests for review of an election decision or objections related to the election; (3) preferring a current member of the petitioned-for unit or nonsupervisory employee to act as each party's election observer; (4) litigating individuals' eligibility to vote or inclusion in an appropriate unit before the election rather than after; and (5) normally scheduling an election no sooner than twenty business days after the direction of election. The district court found all five provisions to be substantive in nature and therefore not subject to the exception to public notice and comment, and enjoined their enforcement.

The D.C. Circuit explained that not all alleged procedural rules are exempt from public notice and comment; only those rules that do not alter the rights or interests of parties fall under this APA exception. Applying this standard, the D.C. Circuit held that the 2019 rule related to the timeline for providing a voter list was substantive in nature, affecting the union's interest in obtaining employee contact information so that it can campaign on equal footing with management. The Court concluded that the delayed certification also curtailed employees' rights and interests, since the delay in certification resulted in a delay in an employer's obligation to bargain with a union. Finally, the Court held that requiring a union to select as its election observer a rank-and-file current employee, rather than allowing a union to select a former employee or union staff as its election observer, demonstrated a substantial value judgment by the Board affecting parties' interests in the fair conduct of an election. Accordingly, the Court concluded the changes to these three provisions of the 2019 rule did not fall within the APA's procedural exception and vacated them.

However, the D.C. Circuit determined that the provisions related to deciding issues of voter eligibility and unit scope prior to (rather than after) an election and to election scheduling constituted internal regulations directed towards the Board's effectiveness in its operations. Therefore, the provisions were subject to the APA's procedural exception and validly promulgated.

The Court also vacated the provision of the 2019 rule that required the impoundment of ballots whenever a party filed a request for review of a direction of election that either was...