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Update: Federal Judge Amends Prior Order Concerning 2019 Election Rules, Affording Deference to the NLRB, but Appeal to D.C. Circuit Remains

In late May, on the eve of the effective date of the NLRB’s sweeping changes to the election process, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia held that certain of the new rules were substantive—not procedural—in nature, and were improperly implemented without affording the public an opportunity to comment. The portion of the rules relating to procedural aspects of elections (such as timing regarding the election process) were upheld and went into effect, but the remainder did not (e.g., issues a party may litigate before an election, right to NLRB advisory opinion, 20-day waiting period before election may be held, among others). The NLRB immediately announced its intent to appeal the decision.

On the eve of the July 4th holiday weekend, Judge Jackson granted a motion for reconsideration and amended the order, in part. Although the Court did not overturn its earlier ruling, the Court held that the election rules—as a whole—were not “arbitrary and capricious” under the Administrative Procedure Act (APA), which likely will aid the NLRB’s appeal to the D.C. Circuit. The Court also found the new rule requiring an automatic impoundment of ballots if there is a challenge to the approval of an election that remains pending after voting was not “arbitrary and capricious,” and did not violate the NLRA.

As the Board is in the process of appealing the May 30 Order, we will keep an eye on this case as it continues to develop. For now, the procedural regulations that were implemented on June 1 will remain in effect for the foreseeable future.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 189


About this Author

Mark Theodore, Employment Attorney, Proskauer Rose

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

Joshua Fox Labor & Employment Attorney Proskauer Rose

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League Baseball, the National Hockey League, the National Football League, the National Basketball Association, and Major League Soccer in collective bargaining, labor relations issues, such as grievance and salary arbitrations, and wage-and-hour issues.

Elizabeth A. Dailey Labor & Employment Proskauer Rose New York, NY

Elizabeth Dailey is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Related Practices

  • Labor & Employment
  • Employment Litigation & Arbitration