Decide Jackson Explains the Foundation for Her Invalidation of the Board’s Election Rules

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As we discussed earlier this month, District Court judge Ketanji Brown Jackson issued a decision by the American Federation of Labor and the Congress of Industrial Organizations against the National Labor Relations Board, Civil Procedure No. 2020-0675, with which five the National Labor Relations Board has been declared invalid (NLRB or Executive Board) New election rules (rules for 2019) will be implemented shortly. Judge Jackson's order, which was issued in a hurry on May 30 to prevent the Executive Board from implementing the new rules on May 31, offered little explanation for her decision, except to say that she accepted each of the contested new rules for the Held electoral procedures to be unlawful and lifted them because they were “no procedural rules” that are exempt from the requirements of the Administrative Procedures Act (APA) for publicizing and commenting on rules.

Given that the new rules of the board (for the layperson) were designed to change the procedures that the agency would use in dealing with future election cases, it was difficult to characterize the order as anything other than “procedural " capture. . However, on June 7, Judge Jackson issued a 52-page memorandum opinion, explaining the underlying basis for her earlier finding, "non-procedural." Your decision in this important case will likely be challenged at the DC Circuit. In the meantime, her memorandum of June 7 speaks volumes about the judicial authority of the board of directors and any rule change that the NLRB would like to make in the future if what it says in it is a good thing. Here's why.

From time to time, the National Labor Relation Act (NLRA or Act), Section 6, grants the NLRB the power to enact, amend and repeal the necessary rules and regulations in the manner prescribed by the Administrative Procedures Act (APA) to execute. “Until recently, the Board of Directors has rarely used this decision-making power and instead has decided to decide and announce its substantive or doctrinal legislative changes on a case-by-case basis. Accordingly, as long as its decisions are compatible with the clear wording and the limitations of the Statute, based on substantial evidence and subject to a judicial review by the appellate courts, it could rethink which substantive policy the Chamber introduced by decision and vice versa, simply by new decision is passed amending the substantive law of the law – without prior public notice or opinion.

The APA, on the other hand, separates the agency's legislative or substantive provisions that have the force and effect of the law (and to which both the agency and the public are legally bound until they are changed) from procedural rules that do not. In fact, legal regulations have the effect of laws, the APA requires a managing authority to comply with these rules until they are changed, and prevents the agency from departing from them or making changes to them without first doing so To publish a notice of the proposed rules and to obtain public comments on significant changes and taking these public contributions into account before implementing a new or changed content rule. However, procedural rules are neither considered to be substantive nor legislative. You don't have the power and effect of the law. Accordingly, the APA authorizes an agency that wants to make changes to its procedural rules to do so without going through the notification and comment process. The difference between what constitutes a substantive / legislative rule and what is an APA procedural rule has changed Judge Jackson's decision.

The purpose of the new Board of Directors election rules (2019 Rules) was to remove and correct certain aspects of the “Quickie” election procedures (2014 Rules) adopted by the Board of Directors in 2014 that the current Board of Directors considered to be seriously flawed. Before the 2019 rules were published, the Board asked the public to contribute to the effectiveness of the 2014 rules and received almost 7,000 responses from the public. Convinced that the 2014 rules (which resulted from a formal notice and comment process) and the changes it wanted to make to the 2019 rules were procedural, the Board decided to consider the formality of a notice regarding the proposed rules waive, and never asked for a formal public opinion on the 2019 changes. In the changes to the new election rules, the board wanted to do the following:

  1. A rule that allows employers to ask questions of individual eligibility and unit exclusion, i.e. H. supervisory questions, to ask and to complain;
  2. A rule that prohibits an election from being held for twenty days after an election is made, so that the board can review and decide on an application to review that direction;
  3. A rule that prohibits issuing a certificate of election results until the board has decided on an application for review or the deadline for submitting an application for review by the board has expired;
  4. A rule that extends the deadline for an employer eligibility list from two business days after the election to five business days; and
  5. A rule that requires an election observer party to choose either a current member of the voting unit or a current non-regulatory employee.

Although Judge Jackson undoubtedly looked and sounded like an electoral process, he found that these rule changes are not "agency" procedures for the APA, as the new rules were not mere budgetary measures, ie those aimed at the internal processes of the Board of Directors to change operations, but aimed at reversing the rules of the Board of 2014. Based on this finding and the fact that the changes to the 2019 rules could significantly affect the material rights of workers under the law, it concluded that "each of the provisions. . . that the AFL-CIO challenge (d) as a breach of notices and comments is well outside the board's internal processes (ed) and the NLRB has not demonstrated that any provision. . . fit (ted) into the narrow framework of the procedural rule exception. Indeed, Judge Jackson even admitted that "although these rules can be characterized as procedural at a certain level of abstraction, they generally refer to the procedures that must be followed to conduct representation elections. But she). . . do not yet have a meaningful impact on the agency's internal processes. . . have a significant impact on. . . Employee ability to launch a successful union building campaign ”. Accordingly, it concluded that each of the five new rules "exceeds the narrow scope of the APA's procedural rules exception" and is exempt from the APA's requirements for notices and comments.

But Judge Jackson didn't stop there. She followed a "belt and braces" approach to her decision-making and continued to explain and explain why each of the five new rules were sufficient "content" rules within the meaning of the APA to require a notification and comment process. Judge Jackson found that the 2019 rules not only affected the agency's internal budget, but only set schedules for the exercise of material rights or simply changed the way in which a party or its positions would present itself to the board , and closed the new rules that granted certain new rights, imposed new obligations, and could have a significant impact on private interests, as the new rules are "considered essential for the purposes of the APA's Notice and Commentary Rules".


The board's rules for 2019 included many other changes that Judge Jackson did not invalidate. The Board of Directors implemented these other changes on June 1. The Board of Directors has also announced that it will appeal its decision to the DC Circuit. This is an extremely narrow legal question with compelling arguments on both sides. It is therefore difficult to predict the final outcome of the case.

The standards that Judge Jackson used to void the board's five rules for 2019 are not clear lines. These are grades that are difficult to apply with real certainty in the real world, which means that almost all seemingly procedural rules that are implemented without a corresponding notification and comment process are susceptible to appeals and judicial secondary assessments.

If Judge Jackson's decision is not overturned, the five 2014 rules that have remained intact due to the 2019 rules being invalidated, and the rest of the 2014 Board of Directors quickie election process may be those of the new rules, that the Board of Directors introduced on June 1, remain unaffected, may not be subject to change unless and until they are the subject of a formal notification and comment process.


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