The legal saga of the National Labor Relations Board’s (NLRB) new election rule took another turn on July 1 when a federal judge found the rule was a proper exercise of statutory interpretation.* 

The entire new rule was scheduled to go into effect on May 31, but U.S. District Court Judge Ketanji Brown Jackson issued an 11th hour abbreviated Order on May 30 in a challenge by the AFL-CIO invalidating parts of the rule. The parts that were not invalidated went into effect on May 31.  

The NLRB promulgated the new rule using an expedited method, as opposed to under the Administrative Procedures Act (APA), a time-consuming process that involves providing advance notice to the public and a comment period. The Judge held that the invalidated parts of the new election rule should have been subject to the full APA notice-and-comment procedure, and thus, could not go into effect. 

The Court followed up with a fuller explanation in a Memorandum Opinion on June 7. In her May 30 order, the Judge had addressed only one count of the AFL-CIO’s suit, granting the union summary judgment. There were three other counts, seeking to overturn the entire new rule. The AFL-CIO argued (among other things) that the rule in its entirety was “arbitrary and capricious” – contending that it was not based on reason or facts, but was simply a rejection of the existing procedures. The Judge’s May 30 and June 7 rulings did not involve these other counts because she interpreted the AFL-CIO’s complaint to say that if the Court granted summary judgment on the one count, there was no need for her to rule on the remaining three. 

The AFL-CIO asked the Court to reconsider, saying the Judge had misinterpreted their pleadings, and she should have ruled on all the counts.  

Judge Jackson agreed. On July 1, 2020, she issued an additional decision, granting summary judgment to the NLRB on the remaining three counts. The Judge explained that the Court cannot substitute its judgment for that of the NLRB. However, the NLRB “must show that there are good reasons for the new policy” and not “simply disregard facts” underlying the prior rules “without offering a reasoned explanation.” The Court found the NLRB met this standard. In sum, the NLRB assessed the facts underlying the prior rule, but now considered how the prior election procedures addressed “certainty and finality, uniformity and transparency, [and] fair and accurate voting” in Board elections. These are policy considerations which are properly within the NLRB’s discretion. 

Judge Jackson also rejected the AFL-CIO’s contention that the NLRB had no authority to impound ballots and delay a vote count until any pending reviews of a pre-election ruling were resolved. The Judge said the NLRB’s rule did not contradict the statute, but was a proper exercise of statutory interpretation. 

It is not known if the AFL-CIO plans to appeal. The NLRB has stated it intends to appeal the Court’s May 30th ruling.

 

 

 

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Photo of Thomas V. Walsh Thomas V. Walsh

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments…

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments in the Weingarten Doctrine, The Board Shifts to the Right,” for the St. John’s University Journal of Legal Commentary. He is also co-author of the Atlantic Legal Foundation’s series “Leveling the Playing Field – What Charter School Leaders Need to Know About Union Organizing.” Mr. Walsh is a member of the New York State Bar Association and of the American Bar Association, and participates in the labor and employment law sections of both organizations.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993