Hunton Employment & Labor Perspectives

The U.S. District Court for the District of Columbia has issued its third, and presumably final, decision in the lawsuit challenging the National Labor Relations Board’s new election rules. In the latest order, the Court granted summary judgement in favor of the NLRB on the remaining counts of the complaint.

As we have previously reported here and here, five distinct provisions of the election rules were held invalid by the district court in late May and early June. The district court’s previous orders were based on count one of the complaint filed by the AFL-CIO to set aside all of the election rules.

On July 1, the court issued a supplemental opinion, ruling in favor of the NLRB on the remaining three counts of the complaint.  The court was required to reach these counts because it ruled that the remaining portions of the election rule were severable from the portions held invalid under count one.

In coming to the decision on the remaining counts, the Court found that the NLRB acted within its authority and presented sufficient justification when it  promulgated the remaining new election rules.

Plaintiff alleged in count two of the complaint “that the 2019 Election Rule as a whole is arbitrary and capricious, and must be set aside on that basis.” Slip op. at 9. The plaintiff alleged more specifically in count three of the complaint “that the provision of the 2019 Election Rule that requires the automatic impoundment of election ballots under certain circumstances is arbitrary and capricious.” Id. To resolve these counts, the Court’s analysis hinged on whether the challenged rules were the result of reasoned or arbitrary decision making under the Administrative Procedures Act (APA). Id. at 12-16. Ultimately, the Court rejected plaintiff’s arguments finding “that the NLRB’s decisionmaking [sic] process with respect to its promulgation of the 2019 Election Rule as whole—and also with respect to the provision that provides for the automatic impoundment of election ballots pending NLRB review—was sufficiently reasoned to clear the APA’s arbitrary-and-capricious policymaking hurdle.” Id. at 4.

Count four of the complaint alleged “that the impoundment provision also violates section 153(b) of the NLRA.” Id. at 9. Section 153(b) of the Act authorizes the Board to delegate its own authority to its regional directors in representation cases, and also establishes that, “upon the filing of a request . . . by any interested person, the Board may review any action of a regional director delegated to him.” Section 153(b) of the Act further provides that “such a review shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director.” In count four, the plaintiff therefore argued that this statutory bar on stays of actions the regional director has taken prevents a stay on act the regional director will make in the future, therefore making the impoundment provision in the new election rules unlawful. Slip op. at 23. The Court rejected this argument, stating that “[i]n this Court’s view, section 153(b)’s stay prohibition plainly speaks solely to actions that have been ‘taken’ by regional directors, 29 U.S.C. § 153(b), and says nothing about whether actions that regional directors have not yet taken (but will take) can be stayed or postponed.” Id.

The court’s July 1 opinion appears to fully resolve the case at the district court level, leaving valid the bulk of the new election regulations implemented by the NLRB. The next stop for the case would be the U.S. Court of Appeals for the District of Columbia Circuit, if either or both parties appeal.