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September 24, 2020

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Judge Issues Detailed Opinion Invalidating Parts of New NLRB Election Rules

U.S. District Court Judge Ketanji Brown Jackson of the District of Columbia has issued a detailed memorandum opinion explaining the reasoning behind her May 30, 2020 order granting summary judgment invalidating portions of the National Labor Relations Board’s (NLRB) revised rules for representation case elections. AFL-CIO v. NLRB, No. 20-CV-0675 (June 7, 2020)

The key issue in the case concerned whether the 2019 election rule amendments promulgated by the NLRB were “substantive” rules affecting individuals’ rights or were merely “procedural.” Under the Administrative Procedures Act, a “substantive” rule can be amended only through a time-consuming process of published notice, public comment, and agency review before the new rule can be implemented. “Procedural” rules can be promulgated more efficiently, without the notice-and-comment period.

The new election rule amendments the NLRB hoped to promulgate in full primarily altered certain timelines and enabled resolution of significant issues affecting voter eligibility and unit configuration before employees cast votes (as opposed to after, which is how the 2014 rules handled the issue). The NLRB characterized all amendments as merely procedural changes to promote finality and more efficient resolution in the election process. As such, the NLRB declined to utilize the lengthy notice-and-comment process.

The AFL-CIO asserted that certain portions of the new election rule substantively affected employee rights, and thus were invalid due to the failure to use the notice-and-comment procedure.

Although Judge Jackson acknowledged the legal distinction between “substantive” and “procedural” rules is a “very murky area,” she granted the AFL-CIO summary judgment. The Judge held that sections of the new rule were “substantive,” repeatedly stating (among other things) that the rules could affect the process of unionization.

Having ruled parts of the rule unlawful, the Judge remanded the rule to the NLRB. The Board could have decided to shelve the new rule in its entirety, but it chose to implement those parts not found to be unlawful. For a more detailed review of the sections of the new rule that the Judge found to be unlawful and those that were not invalidated by her ruling, see Despite Court Ruling, NLRB Implements Much of New Election Rule.

The NLRB has stated that it intends to file an appeal with the U.S. Circuit Court of Appeals in Washington, D.C. We will continue to monitor and report on developments.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 161


About this Author

Thomas V. Walsh, Jackson Lewis, employment arbitration Lawyer, White plains, Union Organizing Attorney

Thomas V. Walsh is a Shareholder in the White Plains, New York, office of Jackson Lewis P.C. Since joining the firm in 1986, Mr. Walsh has represented employers in all aspects of labor and employment law and litigation.

Mr. Walsh has represented employers before numerous state and federal courts, regulatory agencies, as well as in numerous arbitrations. Mr. Walsh has extensive experience in representing employers faced with union organizing drives and in proceedings before the National Labor Relations Board. He has an...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...