U.S. District Court Judge Ketanji Brown Jackson of the District of Columbia has issued a detailed memorandum opinion explaining the reasoning behind her May 30, 2020 order granting summary judgment invalidating portions of the National Labor Relations Board’s (NLRB) revised rules for representation case elections. AFL-CIO v. NLRB, No. 20-CV-0675 (June 7, 2020)

The key issue in the case concerned whether the 2019 election rule amendments promulgated by the NLRB were “substantive” rules affecting individuals’ rights or were merely “procedural.” Under the Administrative Procedures Act, a “substantive” rule can be amended only through a time-consuming process of published notice, public comment, and agency review before the new rule can be implemented. “Procedural” rules can be promulgated more efficiently, without the notice-and-comment period.

The new election rule amendments the NLRB hoped to promulgate in full primarily altered certain timelines and enabled resolution of significant issues affecting voter eligibility and unit configuration before employees cast votes (as opposed to after, which is how the 2014 rules handled the issue). The NLRB characterized all amendments as merely procedural changes to promote finality and more efficient resolution in the election process. As such, the NLRB declined to utilize the lengthy notice-and-comment process.

The AFL-CIO asserted that certain portions of the new election rule substantively affected employee rights, and thus were invalid due to the failure to use the notice-and-comment procedure.

Although Judge Jackson acknowledged the legal distinction between “substantive” and “procedural” rules is a “very murky area,” she granted the AFL-CIO summary judgment. The Judge held that sections of the new rule were “substantive,” repeatedly stating (among other things) that the rules could affect the process of unionization.

Having ruled parts of the rule unlawful, the Judge remanded the rule to the NLRB. The Board could have decided to shelve the new rule in its entirety, but it chose to implement those parts not found to be unlawful. For a more detailed review of the sections of the new rule that the Judge found to be unlawful and those that were not invalidated by her ruling, see Despite Court Ruling, NLRB Implements Much of New Election Rule.

The NLRB has stated that it intends to file an appeal with the U.S. Circuit Court of Appeals in Washington, D.C. We will continue to monitor and report on developments.