The US District Court of Appeals for Washington, DC, in a 2-1 split-decision ruling on Tuesday, rejected parts of a Trump-era National Labor Relations Board rule meant to slow the union election process.
The panel, including Circuit Judges Cornelia Pillard, Sri Srinivasan and Neomi Rao, affirmed the lower court’s invalidation of three provisions, finding that they dealt with substantive rather than procedural rights, according to Bloomberg Law. The court struck down two others.
“The ruling may not have an immediate impact on how the board conducts union elections. Both sides can ask the full DC Circuit to consider the case and then seek review from the U.S. Supreme Court,” Reuters reported.
The procedural changes were favored by businesses but opposed by unions.
“Longer elections generally favor employers. Unions typically don’t file election petitions with the board until they’ve reached their high-water mark for worker support, and employers often launch their campaigns to erode union backing after the petition has been filed,” wrote Bloomberg Law senior legal reporter Robert Iafolla.
The decision came in a lawsuit that was brought against NLRB by the AFL-CIO in March 2020. The largest federation of unions in the United States said that the NLRB violated the federal Administrative Procedure Act by adopting the rule without first soliciting public comments.
“On the merits, we hold that the district court erred in concluding that none of the five challenged provisions comes within the procedural exception; we hold that two of them do. Those two are rules of agency procedure, so were validly promulgated without notice and comment,” Pillard wrote in the majority opinion.
Namely, the appeals court reversed a requirement that hearings on workers’ eligibility to vote be held before elections, and a provision governing the timing of the date of elections.
Rao dissented with the majority.
“Applying our circuit’s precedents, the 2019 Rule is procedural and therefore no notice and comment was necessary. Because I would uphold the 2019 Rule in full, I respectfully dissent in part,” she wrote.
