Hunton Employment & Labor Perspectives

One day before they were to go into effect, the U.S. District Court in Washington, D.C. blocked portions of the NLRB’s recently promulgated election rule, but left the agency free to implement the remainder.  American Federation of Labor and Congress of Industrial Organizations v. National Labor Relations Board, Civ. No. 20-cv-0675 (KBJ) (May 30, 2020).

Specifically, the Court granted the AFL-CIO’s motion for summary judgment “with respect to Count One of the Complaint”, but “will not vacate the remainder of the rule,” which was “remanded to the NLRB for reconsideration in light of this Court’s ruling.”

The Election Rule was promulgated on December 18, 2019 (84 Fed. Reg. 69,524) without following notice and comment rulemaking pursuant to the Administrative Procedure Act, 5 U.S.C. Sec. 553(b), (c). This was the basis for Count One of the Complaint, which argued that portions of the rule were substantive, not procedural, and therefore were invalid because the NLRB did not utilize notice and comment rulemaking in their promulgation.

Count One of the Complaint, as amplified by the Plaintiff’s motion for summary judgment, identified five provisions of the rule that it argued were substantive, not procedural, and it was these five provisions that were invalidated by the Court’s decision:

• giving parties a right to litigate the status of particular individuals under the NLRA and consequently whether they are eligible to be in a bargaining unit and vote in the representation election);
• requiring at least 20 business days between the order directing the election and the conduct of the election;
• extending from 2 days to 5 days the time within which the employer must provide the union with the list of eligible voters;
• restricting the parties’ choice of election observers to only current proposed bargaining unit employees; and
• delaying the certification of election results until the time for filing a request for review with the Board has run, or if review is requested, until it is disposed of by the Board.

The remainder of the rules were not disturbed by the Court’s order, and on June 1, 2020, the Board’s General Counsel issued Memorandum GC 20-07 (Guidance Memorandum on Representation Case Procedure Changes), outlining the provisions of the rule that are being immediately implemented.

This does not end the matter, however, and questions and issues still abound.

• First, how does the Board’s immediate implementation of the remaining rules square with the Court’s remand of the remaining rules “to the NLRB for reconsideration in light of the Court's ruling”?
• Second, the Court stated its intention to issue a “Memorandum Opinion . . . soon, absent unforeseen circumstances.” How might that opinion alter or clarify the provisions of the Order?
• For example, the Order says it grant’s plaintiff’s summary judgement as to Count One of the Complaint – but Count One also argues that the remaining provisions of the election rule are not severable. How does that square with the Court’s failure to vacate the remainder of the rule.  Might that be re-addressed in the Memorandum Opinion?
• Finally, the Order states that it “shall not be deemed a final Order subject to appeal until the Court has issued its Memorandum Opinion.” The Board stated in its press release of June 20, 2020, that it plans to appeal the Court’s decision. Until that appeal is completed, we do not necessarily have the final judicial word on the efficacy of the rule.

There is still much to play out in the review and implementation of the Election Rule, and we are available to assist clients in navigating this situation.