AFL-CIO v. NLRB

AFL-CIO v. NLRB

Opinion

 [*73]  MEMORANDUM OPINION

Administrative agencies have a duty to both notify the public before promulgating rules that potentially affect the substantive rights of regulated parties and review the solicited public feedback before finally adopting such significant policy changes. See Administrative Procedures Act ("APA"), Pub. L. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551-559, 701-706). The law presumes that an agency will engage in notice-and-comment [**2]  rulemaking in nearly every instance in which a final rule is adopted. Thus, if an agency promulgates a rule without providing notice and receiving public comments, the agency must be prepared to demonstrate that the rule it intends to enforce is not actually subject to those APA prescriptions, because it satisfies one of the narrow exceptions to notice-and-comment rulemaking that are specifically identified in the APA. The instant case involves one of those statutory exceptions: notice-and-comment rulemaking is not required with respect to "rules of agency organization, procedure, or practice[.]" 5 U.S.C § 553(b)(A). This is generally and colloquially referred to as the APA exception for "procedural" rules. Mendoza v. Perez, 754 F.3d 1002, 1023, 410 U.S. App. D.C. 210 (D.C. Cir. 2014).

On December 18, 2019, the National Labor Relations Board ("NLRB" or "the Board") took the rare step of promulgating a rule that prescribes certain procedures that employers, employees, and labor unions have to implement with respect to the election of employee representatives for collective bargaining purposes. See 84 Fed. Reg. 69,524 (Dec. 18, 2019) (hereinafter "2019 Election Rule"). The undisputed purpose behind the 2019 Election Rule was to rescind certain election-related regulations that the Board had adopted in 2014: back then, [**3]  the NLRB undertook notice-and-comment rulemaking to promulgate a rule that was primarily designed to effectuate "the essential principle that [union] representation cases should be resolved quickly and fairly[,]" 79 Fed. Reg. 74,308, 74,308 (Dec. 15, 2014), while the 2019 Election Rule sought to implement various pre-election and pre-certification safeguards in order to "promote[] efficiency and expeditious final resolution of the question of representation," 84 Fed. Reg. at 69,529 (emphasis in original).

Significantly for present purposes, when the NLRB reversed course and enacted the 2019 Election Rule, the agency took the position that the rule it was adopting was merely procedural in nature for the purpose of the APA, and as such, it promulgated the rule amendments without notifying  [*74]  the public of the new provisions of law that implemented this policy shift and without soliciting public comment about them. See 84 Fed. Reg. at 69,528. One of the labor organizations that has a significant interest in NLRB rulemaking—the American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO")—has filed the instant lawsuit to challenge the 2019 Election Rule, and argues that the NLRB's rulemaking violates the APA in several respects. (See Compl., ECF No. 1, at [**4]  1.) The AFL-CIO's primary argument is that notice-and-comment rulemaking was required with respect to certain provisions of the 2019 Election Rule (see id. ¶¶ 43-50 (Count I)), and it further maintains that the 2019 Election Rule is both arbitrary and capricious (as a whole (see id. ¶¶ 51-59 (Count II)) and with respect to specific provisions (id. ¶¶ 60-69 (Count III))), and inconsistent with the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151-69 (see id. ¶¶ 70-81 (Count IV)). Accordingly, the AFL-CIO seeks a declaration that the entire 2019 Election Rule violates the APA and a court order that vacates it. (See id. at 15 ("Prayer for Relief").)

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.