Court Determines Certain NLRB Election Rules Were Enacted Without Required Public Participation

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Feb 21, 2023

In 2014, a series of revisions were implemented to the National Labor Relations Board’s (NLRB) election rules. These rules shortened the timeline for elections and were enacted with notice and comment. In 2019, the NLRB undid several of the 2014 changes, among other changes, easing election deadlines and requiring that certain disputes be resolved prior to voting, rather than after. In 2019, the NLRB acted without notice and comment and acknowledged that the changes would result in longer waits for elections and the benefits that flow from union representation.

In March 2020, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the largest federation of unions in the United States, sued the NLRB in Washington, D.C.’s federal trial court, alleging that the rule changes unlawfully altered rights guaranteed to workers by the National Labor Relations Act (NLRA). The lawsuit also alleged that the NLRB violated the Administrative Procedure Act (APA) when it adopted the rule changes without soliciting public feedback via the notice and comment rulemaking process.  The trial court agreed with the AFL-CIO and blocked five of the rule changes from going into effect.

The NLRB appealed the trial court’s decision to block the rule changes, and AFL-CIO cross-appealed, claiming the 2019 changes as a whole were arbitrary and capricious.

When considering the trial court’s decision to block the 2019 rule changes, the Court of Appeal considered two topics that are important in labor relations: the protection of employees’ rights to elect representatives of their choice, and the prevention of unfair labor practices. The Court of Appeal highlighted that the APA is committed to public participation in rulemaking, and the APA only provides for limited exceptions to the notice and comment requirements. The procedural exception allows for rules to be enacted without notice and comment but is a limited carve-out that must be narrowly construed. It is intended for “internal housekeeping measures organizing agency activities,” and covers agency actions that do not alter the rights or interests of the parties.

Using this framework, the Court of Appeal held that two of the five rules were procedural rules and could be enacted without notice and comment, reversing the trial court’s decision with respect to two of the rules. Those two rules were the rules that: (1) delayed elections in which employers raise voter eligibility and other challenges, and (2) lengthened the timeline for holding elections. The Court of Appeal found that these two rules are primarily directed toward internal agency operations and each governs the timing of when the Regional Director will resolve election-related disputes prior to an election. Therefore, notice and comment was not required.

The Court of Appeal found that the remaining three rules all alter the rights or interests of parties and therefore do not qualify for the procedural exception.  The remaining three were the rules that: (1) eased the deadline for employers to turn over workers’ contact information; (2) delayed certification of election results when employers challenge officials’ decisions to hold elections; and (3) limited whom unions may designate as their election watchdog. These rules are substantive changes that require the NLRB to solicit public feedback before issuing them. Therefore, the Court of Appeal upheld the trial court’s decision to block these three rules.

The Court of Appeal remanded the case to the lower court to address the AFL-CIO’s arguments alleging parts of the 2019 rule violated the Administrative Procedure Act and the National Labor Relations Act.

American Federation of Labor and Congress of Industrial Organizations v. National Labor Relations Board, 57 F.4th 1023 (D.C. Cir. 2023).


This is an important decision for schools with unionized employees to watch, because it may impact the election rules for unions. However, the decision may not have an immediate impact on how the NLRB conducts union elections, as the case was remanded for further review, and the NLRB is analyzing the Court of Appeal’s decision to determine the appropriate next steps. LCW will be closely monitoring this case for further updates.

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