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D.C. Circuit Strikes Down Three Provisions of NLRB’s 2019 Election Rule


Chad Horton

Submitted by Firm:
Shawe Rosenthal LLP
Firm Contacts:
Gary L. Simpler, Parker E. Thoeni
Article Type:
Legal Article

A divided panel of the U.S. Court of Appeals for the D.C. Circuit struck down three provisions of the National Labor Relations Board’s (“NLRB”) 2019 election rule (the “2019 Rule”) that amended policies and procedures related to union elections. In AFL-CIO v. NLRB, however, the D.C. Circuit, upheld two provisions and concluded that the rule, as a whole, was not arbitrary and capricious. The upheld provisions will be remanded to the federal district court where it will hear the AFL-CIO’s other arguments against the two provisions.

In March 2020, prior to the 2019 Rule’s implementation, the AFL-CIO filed suit to invalidate portions of the 2019 Rule. Ultimately, Judge Ketanji Brown Jackson – then a district court judge – found that five of the provisions violated the Administrative Procedure Act (“APA”) because the provisions were “substantive” rather than “procedural,” and therefore the APA required a public notice-and-comment period. The 2019 Rule had been issued without a notice-and-comment period.

The D.C. Circuit concluded that three provisions of the 2019 Rule were substantive rather than procedural and struck down the following three provisions:

  1. Voter List Submission – The 2019 Rule lengthened the amount of time an employer had to serve the Voter List on the union and NLRB from two days to five days. Because this provision was struck down, employers must continue complying with the previous two-day rule, which remained in effect while this provision was challenged in the courts.
  2. Election Observers – The 2019 Rule required that a party use a current voting unit employee as its election observer, or, if unavailable, any non-supervisory employee. Previously, a party could choose anyone to be its observer, subject to certain restrictions imposed by the NLRB. As with the Voter List, the pre-2019 Rule had remained in effect during this legal challenge.
  3. Timeline for Election Certification – Under the 2019 Rule, a regional director would be prohibited from certifying the results of an election until after a request for review with the Board had been resolved, or until after the deadline for requesting review had passed. This provision would change the pre-2019 Rule practice – which, again, stayed in effect while this provision was enjoined by the district court in May 2020 – of regional directors certifying election results even while a request for review was pending with the Board.

Having found these provisions to be null and void, they will only go into effect if the NLRB reissues the provisions and provides a public notice-and-comment period. From a practical perspective, reissuance by the current Democratic-majority Board is extremely unlikely given that the 2019 Rule was issued by the so-called Trump Board and was extremely unpopular with big labor.

Two provisions were upheld by the D.C. Circuit:

  1. Pre-Election Litigation of Issues – The 2019 Rule permits parties to litigate most issues related to supervisory status, unit scope, and voter eligibility prior to any election. The 2019 Rule departed from the previous practice of deferring such litigation in many cases until the post-election period, thereby expediting the election.
  2. Election Scheduling – The D.C. Circuit also upheld the 2019 Rule’s requirement that any election directed by a regional director must occur no earlier than 20 business days after the director’s decision directing an election.

While these two provisions were upheld, they were remanded to the district court to address the AFL-CIO’s other arguments. Thus, implementation of these provisions of the 2019 Rule is not imminent.

Employer Takeaway: This decision will have no immediate impact on how the NLRB processes representation cases. All of the five provisions had been previously enjoined by the district court and were not implemented when the 2019 Rule ultimately went into effect in 2020. Further, the two upheld provisions will be remanded and likely remain entangled in litigation before the district court for the foreseeable future.