American Federation of Labor and Congress of Industrial Organizations v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 14, 2021 Decided January 17, 2023

No. 20-5223

AMERICAN FEDERATION OF LABOR AND CONGRESS OF

INDUSTRIAL ORGANIZATIONS,

APPELLEE

v.

NATIONAL LABOR RELATIONS BOARD,

APPELLANT

Consolidated with 20-5226

Appeals from the United States District Court

for the District of Columbia

(No. 1:20-cv-00675)

Paul A. Thomas, Attorney, National Labor Relations

Board, and Tyler James Wiese, Attorney, argued the causes for

appellant/cross-appellee. With them on the briefs were Nancy

E. Kessler Platt, Associate General Counsel, William G.

Mascioli, Assistant General Counsel, Dawn L. Goldstein,

Deputy Assistant General Counsel, Helene D. Lerner,

Supervisory Attorney, and Molly G. Sykes, Attorney.

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Matthew J. Ginsburg argued the cause for appellee/cross-

appellant. With him on the briefs were Leon Dayan and

Maneesh Sharma.

Before: SRINIVASAN, Chief Judge, PILLARD and RAO,

Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

Opinion concurring in the judgment in part and dissenting

in part filed by Circuit Judge RAO.

PILLARD, Circuit Judge: Unique among major federal

agencies, the National Labor Relations Board (NLRB or

Board) sets almost all of its policy through adjudications rather

than rules. That makes the object of this case—a 2019 NLRB

rule—somewhat unusual. The American Federation of Labor

and Congress of Industrial Organizations (AFL-CIO)

challenges a rule governing the elections in which employees

vote on whether to be represented by a union. The Board

promulgated the 2019 Rule without notice and comment,

asserting that it falls within the Administrative Procedure Act’s

(APA) exception for “rules of agency organization, procedure,

or practice.” 5 U.S.C. § 553(b)(A).

The 2019 Rule undid a slate of changes pertaining to

representation elections that the Board in 2014 had

promulgated following notice and comment. The Board in

2019 acted without notice and comment. And it acknowledged

that the 2014 Rule had achieved its objective of significantly

reducing the time between a representation petition, an

election, and the certification of election results, and that

reversing those changes would result in longer waits for

elections and the benefits that flow from union representation.

As the Board explained, and the AFL-CIO agrees, the changes

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introduced by the 2014 Rule did not alter the rate at which

unions win or lose elections. But the Board nonetheless

promulgated the 2019 Rule, viewing it as an advisable set of

changes to ensure fair and accurate voting, transparency and

uniformity, certainty and finality, and efficiency.

The NLRB argues that the National Labor Relations Act

(NLRA or Act), 29 U.S.C. §§ 151-69, mandates direct review

from the Board to the circuit court, see id. § 160(f), and so asks

us to treat this case arriving on its appeal from district court as

if it were before us on a petition for direct review by the AFL-

CIO challenging the 2019 Rule. The Board also asserts that,

even if the district court had jurisdiction, it erred in holding that

five challenged provisions of the Rule fall outside the APA’s

procedural exception. The Board asks us to sustain those

provisions even though they were not promulgated by notice

and comment rulemaking. The AFL-CIO cross-appeals,

arguing that the 2019 Rule as a whole is arbitrary and

capricious and that the provision concerning ballot

impoundment specifically is arbitrary and capricious and

contrary to law.

We hold that the statutory provision for direct review in

federal appellate courts of NLRB orders regarding unfair labor

practices did not divest the district court of jurisdiction over

rules that are exclusively concerned with representation

elections, as is the 2019 Rule. 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. We affirm the district court’s invalidation of the

rules regarding the eligible employee-voters list, the timeline

for certification of election results, and election-observer

eligibility. The AFL-CIO’s challenge to the 2019 Rule as

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arbitrary and capricious when considered as a whole fails.

Finally, we hold that the Rule’s impoundment provision is

contrary to law, making it unnecessary to address whether it is

also arbitrary and capricious.

BACKGROUND

The NLRA covers two important topics in labor relations:

the protection of employees’ right to elect representatives of

their choice, and the prevention of unfair labor practices. See

29 U.S.C. §§ 158, 159. The Act addresses those topics in

separate sections, with section 8 prohibiting unfair labor

practices and providing for enforcement against them, see id.

§ 158, and section 9 outlining the process for conducting

elections by which employees may select unions to represent

them, see id. § 159. As the Board explains in its Rule, the Act’s

provisions regarding representation “protect the exercise by

workers of full freedom of association, self-organization, and

designation of representatives of their own choosing, for the

purpose of negotiating the terms and conditions of their

employment or other mutual aid or protection.”

Representation-Case Procedures, Final Rule, 84 Fed. Reg.

69,524, 69,524 (Dec. 18, 2019) (hereinafter 2019 Rule). Union

representation, where employees choose it, is a statutorily

protected means of advancing many other employee rights and

interests, including resolving grievances and bargaining

collectively with employers.

The NLRA provides for direct review in the federal

appellate courts of at least some NLRB actions. Section 10 of

the Act, titled “Prevention of unfair labor practices,” includes

the Act’s only such grant of judicial review directly in a court

of appeal. See 29 U.S.C. § 160(f). It provides:

Any person aggrieved by a final order of the Board

granting or denying in whole or in part the relief

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sought may obtain a review of such order in any

United States court of appeals in the circuit wherein

the unfair labor practice in question was alleged to

have been engaged in or wherein such person resides

or transacts business, or in the United States Court of

Appeals for the District of Columbia . . . .

Id. The Act thus provides for direct appellate review of “a final

order,” and places venue where “the unfair labor practice in

question” took place. Id. Nowhere does the Act specifically

address review of Board actions pertaining to representation

elections. The Act grants the NLRB general rulemaking

authority in section 6, id. § 156, and references rulemaking

specific to representation and elections in section 9, id.

§ 159(c)(1). Nothing in either section addresses judicial review

of NLRB rules as distinct from orders, whether the rules

address unfair labor practices or representation elections.

The Rule at issue here addresses the representation

election process, which the NLRA describes in some detail.

The Act outlines four basic steps for parties to follow to

organize a secret-ballot election under Board supervision to

determine whether a union will represent a group of employees.

First, an employee, union, or employer may file a petition

with the Board calling for an election among a particular group

of employees, proposing the group as an appropriate “unit” of

representation, and seeking either certification or, less

commonly, decertification of a union as the employees’

exclusive collective bargaining representative. See id.; 2019

Rule, 84 Fed. Reg. at 69,524. Most petitioned-for elections are

conducted pursuant to an election agreement reflecting the

parties’ accord on details like the date of the election and the

employees who may appropriately be included in the

bargaining unit. Both before and after the Board’s 2014 Rule

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changes, more than ninety percent of elections were conducted

pursuant to agreements. See 2019 Rule, 84 Fed. Reg. at 69,528

n.16.

If the parties cannot reach an election agreement, the

second step is a hearing to develop the record on which a

Regional Director determines whether a “question of

representation” exists, i.e., whether the petitioner filed a proper

petition concerning a unit appropriate for collective bargaining,

so eligible for an employee vote. See 29 C.F.R. § 102.64. If

the proposed unit would not be appropriate for the purpose of

collective bargaining, the Regional Director dismisses the

petition; if it would be appropriate, the Regional Director issues

a decision and direction of election setting parameters like the

election date and the contours of the voting unit. Any party can

file a request for Board review of the Regional Director’s

decision and direction of election.

The third stage is the election itself, in which employees

vote by secret ballot for or against union representation. The

parties and the Board may also challenge the eligibility of

voters during the election, after which they may attempt to

resolve any such challenges. Challenged ballots the validity of

which remains unresolved are set aside, and the valid ballots

are counted at the conclusion of the election. See id. § 102.69.

The parties litigate the validity of challenged ballots only if

they are outcome determinative.

Fourth, after the election, the Board, either itself or

through its Regional Director, certifies the election results. See

id. § 102.69(b). If a majority of employees voted for union

representation, the union’s certification as the employees’

representative obligates the employer to bargain with it in good

faith and renders the failure to do so an unfair labor practice.

See 29 U.S.C. § 158(a)(5). The post-election stage can also

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include party objections to the conduct of the election, which

the Regional Director investigates, potentially calling a post-

election hearing to inform the decision on those objections. See

29 C.F.R. § 102.69(c). A Regional Director’s decision on

objections is subject to review by the Board in response to a

party’s request. Id. § 102.69(c)(2).

The Board first promulgated a set of rules in 1961 setting

forth steps and standards for the Board to follow in responding

to petitions raising objections to representation elections—a

process that the Board has come to refer to as “representation

cases.” See Miscellaneous Amendments, 26 Fed. Reg. 3,885

(May 4, 1961). Since then, the Board has acted to make a

variety of minor, unchallenged amendments to those rules

without prior notice or request for public comment. See

Representation—Case Procedures, Final Rule, 79 Fed. Reg.

74,308, 74,310 (Dec. 15, 2014) (hereinafter 2014 Rule). In

2011, the NLRB promulgated a final rule on representation

cases after notice and comment, but that rule was challenged

and invalidated because the Board acted without a quorum. See

Chamber of Com. v. NLRB, 879 F. Supp. 2d 18, 20-21, 30

(D.D.C. 2012). The Board regained a quorum and gave public

notice and sought comment on the 2014 Rule, which was

“almost identical” to its 2011 predecessor, AFL-CIO v. NLRB

(AFL I), 466 F. Supp. 3d 68, 76 (D.D.C. 2020), and which was

twice upheld in full, see Associated Builders & Contractors of

Tex., Inc. v. NLRB, 826 F.3d 215, 218 (5th Cir. 2016); Chamber

of Com. v. NLRB, 118 F. Supp. 3d 171, 177 (D.D.C. 2015).

That 2014 Rule is the backdrop to the rule challenged here.

The 2014 Rule made twenty-five changes to the then-

existing rules for representation cases. See 79 Fed. Reg. at

74,308-10. Two of the Board’s five members dissented. Id. at

74,430-60; see also Representation-Case Procedures, Request

for Information, 82 Fed. Reg. 58,783, 58,783 (Dec. 14, 2017)

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(hereinafter 2017 RFI). The 2014 Rule went into effect on

April 14, 2015, after President Obama vetoed the resolution

Congress passed disapproving the Rule pursuant to the

Congressional Review Act, 5 U.S.C. § 801 et seq. See 2017

RFI, 82 Fed. Reg. at 58,783.

The Board promulgated the 2014 Rule by notice and

comment rulemaking but asserted that “none of this process

was required by law” and that “[t]he Board has never engaged

in notice and comment rulemaking on representation case

procedures, and all of the proposed changes could have been

made without notice and comment—in part by adjudication,

and in part by simply promulgating a final rule.” 79 Fed. Reg.

at 74,311. In the Board’s view, its amendments were

“primarily procedural,” any substantive changes “could have

been made by adjudication,” and the rule was therefore

“exempt from notice and comment” under the APA. See id. at

74,311 n.9.

In late 2017, the NLRB issued a request for information

concerning the operation of the 2014 Rule. See 2017 RFI, 82

Fed. Reg. at 58,783. It received nearly 7,000 submissions in

response. The AFL-CIO, the largest federation of unions in the

United States, made a submission that included an expert report

on the effects of the 2014 Rule. The report analyzed data from

a five-year period straddling the effective date of the 2014

Rule, comparing the two and a half years of Board data on

either side of the rule change. In the report, John-Paul

Ferguson, “a leading academic expert on NLRB elections,”

AFL-CIO Principal & Response Br. 6, explained that the 2014

Rule changes produced “a significant decrease in the time

between petition and election and the time between petition and

the closing of [representation] cases,” Deferred Appendix

(D.A.) 103. In contrast to the typical seventy-seven days from

petition to closing of a representation case before the 2014

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Rule, the average time dropped to fifty-six days after the rule.

D.A. 110. Apart from shorter timelines from petition to

certification, Ferguson concluded, the 2014 Rule did not cause

“any other significant changes in case processing variables or

outcomes.” D.A. 103. He found, among other things, that the

2014 Rule did not change the rate at which unions win or lose

elections, D.A. 108-09, nor the incidence or average length of

pre- or post-election hearings, D.A. 111-12.

Two years later, at a time when one Board seat remained

unfilled following the end of former Chairman Pearce’s term

in 2018, a divided four-member Board issued the 2019 Rule.

See 84 Fed. Reg. at 69,524. The Board expressly invoked the

procedural exception in section 553(b)(A) of the APA, 84 Fed.

Reg at 69,528, and asserted that it was “not treating the

responses to the 2017 Request for Information as notice-and-

comment rulemaking,” id. at 69,528 n.12. All told, the Rule

made fifteen changes to then-current provisions, many of

which reinstated all or parts of the pre-2014 rules and a handful

of which were new. See id. at 69,524-26 (concise descriptions),

69,588-600 (amended rules). Board Member McFerran

dissented from the 2019 Rule as having arbitrarily and without

empirical support delayed employees’ enjoyment of their

NLRA rights by, among other things, slowing the process in

contested cases to the point of tripling the minimum number of

days from the filing of a petition for an election to the

certification of a union. Id. at 69,557-62.

On March 6, 2020, the AFL-CIO filed a four-count

complaint in district court, claiming that the 2019 Rule as a

whole violated the APA, and that certain provisions were also

independently invalid. The parties filed cross-motions for

summary judgment. The Board also moved to transfer the case

here from district court, arguing that subsection 10(f) of the

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NLRA requires direct appellate review of any NLRB order or

rule.

On May 30, 2020, one day before the 2019 Rule was set to

go into effect, the district court issued an order denying the

Board’s motion to transfer and granting summary judgment to

the AFL-CIO on the ground that five challenged provisions of

the Rule did not fall within the APA’s procedural exception.

About a week later, the court issued an opinion explaining

those rulings. See AFL I, 466 F. Supp. 3d at 74. The AFL-CIO

moved for reconsideration, requesting that the district court

rule on its remaining claims. On July 1, 2020, the court issued

a supplemental memorandum opinion and order denying the

remainder of the AFL-CIO’s claims. See AFL-CIO v. NLRB

(AFL II), 471 F. Supp. 3d 228, 234 (D.D.C. 2020).

Our review of both the district court’s determination on

jurisdiction and its rulings on summary judgment is de novo.

DISCUSSION

I. Jurisdiction

The Board first argues that subsection 10(f) of the NLRA,

which all agree provides direct review in federal appellate

courts of at least some “final order[s] of the Board,” 29 U.S.C.

§ 160(f), should be read to require direct circuit-court review

of the AFL-CIO’s challenge to the 2019 Rule. The Board does

not identify any material effect of that position on our

consideration of this case: Our review is de novo in any event,

and the AFL-CIO’s filing here concededly would be timely

even were we to treat it as a petition for direct review. But

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because it reads the statute to require direct review, the Board

urges us to exercise original rather than appellate jurisdiction.

The text of section 10(f) is seemingly limited to orders

regarding unfair labor practices, and we are reviewing a rule

unrelated to such practices. But we have held that direct-

review statutes providing for our review of “orders” authorize

us to review rules. N.Y. Republican State Comm. v. SEC

(NYRSC), 799 F.3d 1126, 1129-30, 1133 (D.C. Cir. 2015); Inv.

Co. Inst. v. Bd. of Governors of the Fed. Rsrv. Sys., 551 F.2d

1270, 1278 (D.C. Cir. 1977); see also Fla. Power & Light Co.

v. Lorion, 470 U.S. 729, 737 (1985). That approach makes

good sense here, because when Congress enacted the NLRA in

1935 “courts generally declined to engage in pre-enforcement

review of agency rules,” NYRSC, 799 F.3d at 1134, so

Congress spoke of “orders” as shorthand for final agency

action.

There is some reason to think Congress’s reference to “the

unfair labor practice in question” in its direct-review

authorization encompasses judicially reviewable Board rules

governing representation procedures. It is at least conceivable

that the direct-review provision is limited to “unfair labor

practice” orders because Congress provided for review of

representation disputes only via review of “orders of the Board

prohibiting unfair labor practices,” AFL v. NLRB, 308 U.S.

401, 409 (1940); see Nat’l Hot Rod Ass’n v. NLRB, 988 F.3d

506, 508 (D.C. Cir. 2021), not because Congress sought to treat

representation rules differently from unfair labor practice rules.

As a practical matter, it is not apparent why challenges to

representation rules should be heard first in the district court

while challenges to unfair labor practice rules come directly

here: Both are decided on the administrative record and benefit

from prompt resolution. Our precedent, moreover, takes a

generous approach to direct-review statutes: Where Congress

12

gives us mixed signals, we resolve statutory ambiguity in favor

of direct review in the courts of appeals. See Nat’l Auto.

Dealers Ass’n v. FTC, 670 F.3d 268, 270 (D.C. Cir. 2012).

That said, we are ultimately unpersuaded that any

implications from the vintage of the NLRA or policy

arguments for a common review path suffice to overcome the

textual reference to “unfair labor practice” in subsection 10(f)

and other statutory indicia that distinguish unfair labor practice

rules from those addressing representation procedures. “In this

circuit, the normal default rule is that persons seeking review

of agency action go first to district court rather than to a court

of appeals.” Id. (internal quotation marks and citations

omitted). It is the exception that “[i]nitial review of agency

decisions occurs at the appellate level”—an exception reserved

for cases as to which “a direct-review statute specifically gives

the court of appeals subject-matter jurisdiction to directly

review agency action.” Id. (internal quotation marks and

citations omitted).

Applying those principles to the text of subsection 10(f)

and the overall structure of the NLRA, we hold that the district

court correctly exercised jurisdiction over the AFL-CIO’s

challenge to the 2019 Rule. Section 10 of the NLRA,

addressing the “[p]revention of unfair labor practices,” 29

U.S.C. § 160, provides for direct review in federal courts of

appeals from some final actions of the Board, id. § 160(f).

Subsection 10(f) specifies that review may be had in this court

or “in the circuit wherein the unfair labor practice in question

was alleged to have been engaged” (or, although not relevant

here, in the circuit wherein the petitioner “resides or transacts

business”). Id. The district court correctly reasoned that

subsection 10(f)’s textual reference to unfair labor practices,

combined with the absence of any mention of determinations

governing representation or elections, “strongly suggests that

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the provision is only triggered when some kind of unfair labor

practice is at issue.” AFL I, 466 F. Supp. 3d at 84. The

statutory phrase defining appellate-court venue options by

reference to “the unfair labor practice in question,” a specific

iteration of a broader category, implies that the overall

provision’s object is that category—unfair labor practices—

which does not include NLRA rules regarding representation

elections. 29 U.S.C. § 160(f) (emphases added).

It is undisputed that unfair labor practices—whether

specifically or in general—are not at issue in this pre-

enforcement challenge to the 2019 Rule, which concerns

exclusively elections regarding union representation. And

nowhere in subsection 10(f) or anywhere else in section 10 is

there any reference to elections or representation. Rather,

subsection 10(f) communicates “that what is being directed to

the court of appeals” for the purpose of direct review is NLRB

final orders (and, per binding precedent, rules) concerning

unfair labor practices. AFL I, 466 F. Supp. 3d at 84.

The placement of the direct-appellate-review provision

within section 10 confirms that conclusion. To start, the

section title, “Prevention of unfair labor practices,” announces

its topical focus. 29 U.S.C. § 160; see Almendarez-Torres v.

United States, 523 U.S. 224, 234 (1998). And the subsections

surrounding 10(f) make explicit their concern with unfair labor

practices. Cf. Territory of Guam v. United States, 141 S. Ct.

1608, 1613 (2021) (considering the “family” of provisions

when interpreting one specific provision). Subsection 10(a)

empowers the Board “to prevent any person from engaging in

any unfair labor practice (listed in section 158 of this title)

affecting commerce.” 29 U.S.C. § 160(a). Subsection 10(b)

describes the Board’s power to issue and pursue complaints

regarding charges of unfair labor practices. See id. § 160(b).

Subsection 10(c) states that if, after taking testimony and

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potentially hearing argument on an unfair labor practice

charge, the Board believes that an unfair labor practice has

occurred, it shall, among other things, issue “an order

requiring such person to cease and desist from such unfair

labor practice.” Id. § 160(c). And subsection 10(e), in terms

parallel to 10(f), allows the Board to petition for enforcement

of its orders in any circuit court “wherein the unfair labor

practice in question occurred or wherein such person resides

or transacts business.” Id. § 160(e). This context suggests

that, like its sister provisions, 10(f) is concerned solely with

unfair labor practices, not representation matters.

The structure of the entire NLRA underscores Congress’s

separate treatment of unfair-labor-practice and union-

representation matters, further clarifying that subsection 10(f)

applies only to the former. As described above, Congress

addressed those two core categories of issues in separate

statutory sections: representation matters in section 9, id.

§ 159, and unfair labor practices matters in section 8, id. § 158.

That structural separation reinforces that subsection 10(f)—

with its express reference to unfair labor practices but no

mention of representation—does not extend to the

representation-case rules at issue here.

Against those textual and structural indicia, the Board’s

counterarguments fall short. First, the Board’s principal

argument attacks a strawman. The Board points out that we

have held that the term “order” in other direct-review statutes

encompasses agency rules, see NLRB Principal Br. 18-23

(citing NYRSC, 799 F.3d at 1129-30, 1133; Inv. Co. Inst., 551

F.2d at 1278), and asserts that subsection 10(f) is ambiguous as

to whether its use of the term “order” includes NLRB rules like

the one at issue here. True enough. But the obstacle is not that

subsection 10(f)’s reference to “orders” bars us from reviewing

a rule. The difficulty for the Board is the subject matter not the

15

form of the challenged agency action. As the district court

explained, subsection 10(f) is inapplicable “because the

NLRB’s action regulates representation rather than unfair labor

practices.” AFL I, 466 F. Supp. 3d at 87. In other words,

subsection 10(f) is not “ambiguous in any sense relevant,”

Nat’l Auto. Dealers Ass’n, 670 F.3d at 270 (citation omitted),

because—even accepting that “final order” also extends to

rules—the provision applies to rules concerning unfair labor

practices, not representation cases.

Second, the Board cannot dismiss subsection 10(f)’s

reference to unfair labor practices as merely a “venue

provision.” NLRB Principal Br. 29. The Board argues that, by

including that reference, Congress did nothing more than

“suppl[y] petitioners seeking review of unfair labor practice

cases with an additional convenient forum” in the place where

the unfair labor practice is alleged to have occurred. Id. The

reference to unfair labor practices qualifies only the venue

clause, the Board says, while the rest of the subsection

“remains perfectly operative” as “a very plain, general grant of

jurisdiction to circuit courts to review all ‘final orders of the

Board granting or denying in whole or in part the relief

sought’”—including final actions not involving unfair labor

practices. Id. (quoting 29 U.S.C. § 160(f)). But, as the district

court acknowledged, subsection 10(f)’s inclusion of a venue-

expanding clause does not detract from textual and structural

specifications that “the subject of a petition for review that is

filed with the court of appeals under [subsection 10(f)] must be

an NLRB action that pertains to unfair labor practices as

opposed to any other topic that the agency might have acted to

address.” AFL I, 466 F. Supp. 3d at 86 (emphasis in original).

We are somewhat puzzled by Congress’s decision to

provide for direct review in this court for unfair labor practice

cases but not for representation matters, given that both types

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of cases are heard on agency records and would seem to benefit

equally from quick resolution in our court. But we cannot

rewrite the statute to resolve what seems a quirk. Thus,

pursuant to 28 U.S.C. § 1331, the district court had jurisdiction

over the AFL-CIO’s challenge to the 2019 Rule, and we

exercise appellate jurisdiction under 28 U.S.C. § 1291 to

review its judgment.

II. The APA’s Procedural Exception to Notice and

Comment

The Board next challenges the district court’s ruling that

the APA’s procedural exception is inapplicable. The district

court held that the Board violated the APA by promulgating

each of the five challenged provisions of the 2019 Rule without

engaging in notice and comment rulemaking. The Board

claims the five challenged provisions are exempt from the

APA’s notice and comment requirements as rules of agency

procedure under 5 U.S.C. § 553(b)(A).

In general, the APA requires agencies to publish notice of

proposed rules in the Federal Register and to accept and

consider comments on them from the public. See 5 U.S.C.

§ 553(b)-(c). Those requirements are central to the APA’s

“commitment to public notice and participation.” Batterton v.

Marshall, 648 F.2d 694, 700 (D.C. Cir. 1980). Public

participation helps to ensure that regulators are factually well

informed and have the benefit of alternative solutions that

commenters may suggest. See id. at 703-04. Rulemaking that

acknowledges and responds to expressed needs and concerns

of regulated parties and the affected public tends to be more

readily accepted by winners and losers alike. See Guardian

Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589

F.2d 658, 662 (D.C. Cir. 1978).

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In keeping with the statutory commitment to public

participation in rulemaking, “the APA provides only limited

exceptions to [its notice and comment] requirements.”

Batterton, 648 F.2d at 700-01; see id. at 704. One such

exception is for “rules of agency organization, procedure, or

practice.” 5 U.S.C. § 553(b)(A). We have used the term

“procedural exception” as shorthand for that exemption, see,

e.g., Pub. Citizen v. Dep’t of State, 276 F.3d 634, 640 (D.C.

Cir. 2002) (quoting JEM Broad. Co. v. FCC, 22 F.3d 320, 328

(D.C. Cir. 1994)), and we have referred to rules promulgated

under it as “procedural rules,” see, e.g., Mendoza v. Perez, 754

F.3d 1002, 1023 (D.C. Cir. 2014). But, as the text of the APA

makes clear, not all rules that might be categorized as

procedural are exempted; the limited carveout is intended for

“internal house-keeping measures organizing agency

activities.” Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045

(D.C. Cir. 1987) (quoting Batterton, 648 F.2d at 702). And its

purpose is “to ensure that agencies retain latitude in organizing

their internal operations.” Mendoza, 754 F.3d at 1023 (quoting

Batterton, 648 F.2d at 707); accord Bowen, 834 F.2d at 1047.

We treat rules as procedural if they are “primarily directed

toward improving the efficient and effective operations of an

agency.” Mendoza, 754 F.3d at 1023 (quoting Batterton, 648

F.2d at 702 n.34). “[T]he critical feature of a rule that satisfies

the so-called procedural exception is that it covers agency

actions that do not themselves alter the rights or interests of

parties, although it may alter the manner in which the parties

present themselves or their viewpoints to the agency.” James

V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 280 (D.C.

Cir. 2000) (internal quotation marks omitted). Where a rule

imposes “substantive burden[s],” Bowen, 834 F.2d at 1052,

“encodes a substantive value judgment,” Pub. Citizen, 276 F.3d

at 640 (quoting Bowen, 834 F.2d at 1047), “trenches on

substantial private rights [or] interests,” Mendoza, 754 F.3d at

18

1023 (quoting Batterton, 648 F.2d at 708), or otherwise

“alter[s] the rights or interests of parties,” Nat’l Min. Ass’n v.

McCarthy, 758 F.3d 243, 250 (D.C. Cir. 2014) (quoting

Glickman, 229 F.3d at 280), it is not procedural for purposes of

the section 553 exemption. At bottom, the exception for

“internal house-keeping measures,” Bowen, 834 F.2d at 1045,

“must be narrowly construed,” Elec. Priv. Info. Ctr. v. U.S.

Dep’t of Homeland Sec. (EPIC), 653 F.3d 1, 6 (D.C. Cir. 2011).

These precedents represent this court’s current and consistent

approach. Cf. Diss Op. 1, 5.

The 2019 Rule governs how the Board supervises

representation elections that determine whether a union will

represent a group of employees. Many of the Board’s

representation-election provisions, including provisions of the

2019 Rule, govern or directly affect regulated parties—

employers, unions, and employees—and their substantive

rights in relation to one another during representation elections.

That means much of the election conduct the Board regulates

is not internal “agency action[].” Glickman, 229 F.3d at 280.

In other words, the Board’s role in supervising elections does

not convert all representation-election rules into rules of

internal agency procedure. That said, some of the

representation-election provisions do regulate how the parties

present disputes to the Board and the process for its decision.

Thus, some but not all of the Board’s rules are “primarily

directed toward improving the efficient and effective

operations of [the] agency,” Mendoza, 754 F.3d at 1023

(quoting Batterton, 648 F.2d at 702 n.34), or toward “the

manner in which [regulated] parties present themselves or their

viewpoints to the agency,” Glickman, 229 F.3d at 280 (quoting

JEM Broad. Co., 22 F.3d at 326).

We hold that three of the challenged provisions—those

regarding employers’ production of voter lists, the delayed

19

certification of election results, and who may serve as election

observers—fall outside the scope of the procedural exception.

As detailed below, the voter-list provision trenches on the

union’s substantive interest in campaigning on equal footing

with the employer. The provisions delaying certification cut

back on an employer’s legal duty post-election to bargain in

good faith, effectively eliminating that duty during the

pendency of a request for review or, in the absence of such a

request, until the time for seeking Board review has passed.

And the election-observer provision establishes new

substantive criteria for selecting observers that directly affect

regulated parties’ interests in fair elections. Those provisions

all substantively “alter the rights or interests of parties,”

Glickman, 229 F.3d at 280 (quoting JEM Broad. Co., 22 F.3d

at 326), and therefore do not qualify as procedural rules for

purposes of the section 553 exemption.

However, two of the challenged provisions—those

regarding pre-election litigation of certain issues and a related

change to election scheduling—are procedural rules within the

meaning of section 553(b)(A). Both provisions are “primarily

directed toward” internal agency operations, Mendoza, 754

F.3d at 1023 (quoting Batterton, 648 F.2d at 702 n.34), insofar

as they each govern the presumptive timing of when the

Regional Director will resolve election-related disputes prior to

an election. The Board therefore permissibly issued those

provisions without notice and comment. We discuss each

provision in turn, beginning with the substantive rules.

A. Substantive Rules

1. Voter list

Once a Regional Director issues a direction of election

following a pre-election hearing, the employer must provide

both the union and the Board with a list of the names, job

20

details, and contact information for all eligible employee-

voters. See 29 C.F.R. § 102.67(l); see also 2019 Rule, 84 Fed.

Reg. at 69,531 & n.28. The Board does not seriously dispute

that the primary purpose of that voter list is to facilitate the

union’s campaign activities because, before receiving the list,

the union generally does not have the same ability as the

employer to contact employee-voters. Under the 2019 Rule, an

employer has five business days from the issuance of the

direction of election to provide the voter list. 84 Fed. Reg. at

69,596-97 (codified at 29 C.F.R. § 102.67(l)). By contrast, the

2014 Rule required an employer to provide it within two

business days. 79 Fed. Reg. at 74,486.

We conclude that the voter-list provision falls outside the

section 553 exception for “rules of agency organization,

procedure, or practice.” 5 U.S.C. § 553(b)(A). By changing

the timeline for transmission of the voter list, the provision

directly addresses the union’s ability to contact employees on

equal terms with the employer. The voter-list provision

thereby “alter[s]” regulated parties’ substantive “rights [and]

interests” in relation to each other. Glickman, 229 F.3d at 280

(quoting JEM Broad. Co., 22 F.3d at 326). The Supreme Court

has acknowledged that the Board’s requirement that employers

share voter lists supports the NLRA-protected right of “fair and

free choice of bargaining representatives,” in part by “allowing

unions the right of access to employees that management

already possesses.” NLRB v. Wyman-Gordon Co., 394 U.S.

759, 767 (1969). By delaying the employer’s obligation to

share with the union the employee-voters’ contact information,

the provision “trenches on” the union’s substantive interest in

campaigning on equal footing with the employer. Mendoza,

754 F.3d at 1023 (quoting Batterton, 648 F.2d at 708). It

therefore does not qualify as procedural for purposes of the

section 553 exception. See id.

21

The voter-list provision is also neither facially nor

materially directed at “internal house-keeping.” Bowen, 834

F.2d at 1045. It does not govern internal agency operations,

nor is it principally directed at the “manner in which [regulated]

parties present themselves or their viewpoints to the agency,”

Glickman, 229 F.3d at 280 (quoting JEM Broad. Co., 22 F.3d

at 326). Instead, it primarily facilitates the transmission of

information between parties, not from a party to the Board. See

Mendoza, 754 F.3d at 1024 (deeming substantive agency’s

employer-certification procedures that set terms of employer-

employee relationships). And it does so outside the context of

any agency proceeding. The voter-list provision thus bears

none of the hallmarks of a rule that would fall within the

procedural exception.

The Board does not dispute the importance of voter lists to

the union’s ability to campaign, nor the reality that the shift

from two days to five within the twenty-day default pre-

election period extends the time when the employer has

exclusive use of employee-voters’ contact information.

Instead, Board counsel argues that the voter lists also help the

Board conduct elections. The lists, for example, separately

identify the employees who are casting their votes subject to

challenge, thus making it easier for the Board to identify them.

But that seemingly slight convenience to the Board does not

obviate the rule’s substantive character. Given that the union’s

substantive interest in campaigning on equal footing with the

employer is impaired until the employer produces the voter list,

postponing that production necessarily burdens the union’s

substantive interest. See Mendoza, 754 F.3d at 1023. And,

tellingly, the Board did not even mention its asserted

convenience rationale in the rulemaking.

The Board in its reply brief tries to brush off the delay as,

in any event, “de minimis.” NLRB Response & Reply Br. 26.

22

That rationale, too, is absent from the rulemaking; indeed, to

the contrary, in support of the 2019 change the Board stressed

the significance of the added time—for employers. See 2019

Rule, 84 Fed. Reg at 69,531-32. And we are unpersuaded by

the Board’s suggestion that extension of the time to set

elections, discussed below, cancels out the delayed provision

of the voter list to a union, somehow making the voter-list delay

procedural. NLRB Principal Br. 61; 2019 Rule, 84 Fed. Reg.

at 69,532. The pre-election period is now presumptively set at

twenty days but is often shorter. And, in any event, a three-day

head start on campaigning by employers before a union can

even access employee contact information to reach potential

voters is not erased by the addition of other days both parties

might use to campaign. The asymmetry of three additional

days of employers’ exclusive access to employee-voters’

contact information substantively burdens the union’s ability to

campaign on equal footing.

Reference to pre-2014 practice likewise does nothing to

dispel the AFL-CIO’s concerns about the disparity under the

2019 Rule between unions’ and employers’ ability to

campaign. Before the 2014 Rule, an employer had to provide

the union with the voter list within seven calendar days from

the issuance of the direction of election, which is generally

equivalent to the five business days specified in the 2019 Rule.

See 2019 Rule, 84 Fed. Reg. at 69,530-31. When the Board

shortened the time to two days in the 2014 Rule, it pointed to

widespread advances in recordkeeping, retrieval, and

transmission technology since it first recognized unions’ right

to voter lists in Excelsior Underwear, Inc., 156 NLRB 1236,

1239-40 (1966), as obviating the basis for the original seven-

day period. See 2014 Rule, 79 Fed. Reg. at 74,353. The 2014

Rule preamble noted that under the prior rule—in addition to

the two out of seven days treated as “lost to the weekend”—

employers operating under Excelsior before the advent of e-

23

mail and even express delivery services were allocated “3 more

days . . . dedicated to service of the list by regular mail.” 79

Fed. Reg. at 74,353. Excelsior’s own reasoning thus suggests

that, without need to rely on the postal service, employers can

provide the lists to unions within two days. To the extent the

Board nonetheless wishes to revert to granting employers more

time than that to provide the lists to unions, it must make such

a substantive change through notice and comment procedures.

Finally, the Board and our dissenting colleague liken

delayed provision of the voter list to “changing the timeline for

filings with an agency,” NLRB Principal Br. 61; see Diss. Op.

10 (citing Lamoille Valley R.R. Co. v. Interstate Com. Comm’n,

711 F.2d 295, 328 (D.C. Cir. 1983)), as a reason to treat it as a

“rule[] of agency organization, procedure, or practice,”

5 U.S.C. § 553(b)(A). But the voter-list provision does not set

timelines for an agency’s internal processes, nor is it

principally about submissions to the agency in support of such

process. Our precedent examining “timetable[s] for asserting

substantive rights” before an agency, Lamoille, 711 F.2d at

328, is, thus, readily distinguished.

The voter-list provision’s substantive character is instead

established through the antecedent inquiry whether the Board’s

rule “alter[s],” Glickman, 229 F.3d at 280, or otherwise

“trenches on” a substantive right or interest, Mendoza, 754 F.3d

at 1023—here, the union’s interest in campaigning on equal

footing with the employer. Again, the provision primarily

facilitates the transmission of information between parties to

“allow[] unions the right of access to employees that

management already possesses.” Wyman-Gordon, 394 U.S. at

767. And it directly affects the parties’ primary interest in free

and fair bargaining-unit elections. See id. Because it impairs

a substantive interest, it is subject to the APA’s notice and

comment requirements.

24

In sum, considering the “primary benefit” of the voter list

to help the union communicate with employee-voters in the

run-up to an election, NLRB Response & Reply Br. 27, and the

lack of any significant basis to treat this provision as a rule of

agency operations, we conclude the delayed voter-list

provision determines parties’ rights or interests and is

substantive. Accordingly, it should have been subjected to

public notice and comment. See Mendoza, 754 F.3d at 1023.

Because it was not, it is hereby vacated and remanded.

2. Delayed certification

If employees favoring the union win an election and the

Board, or its Regional Director by delegation, certifies the

union as the employees’ representative, the Act then requires

the employer to bargain in good faith with the union. See 29

U.S.C. § 158(a)(5); see also 2019 Rule, 84 Fed. Reg. at 69,554.

Since the 2014 Rule went into effect, a party may file a request

for Board review of the decision and direction of election even

after the election has occurred. Parties may also file with the

Regional Director objections to the conduct of the election and,

if unsuccessful, may seek Board review of the Regional

Director’s decision on those objections. See 2019 Rule, 84

Fed. Reg. at 69,526, 69,553-54 (citing 29 C.F.R. § 102.67(c)).

Under the 2019 Rule, a Regional Director will certify

election results only after she has resolved any requests for

review concerning the decision and direction of election or

objections to the conduct of the election or, in the absence of

such filings, after the time for seeking Board review has passed.

See 84 Fed. Reg. at 69,597-99 (codified at 29 C.F.R.

§ 102.69(b), (c)); see also id. at 69,526. The 2014 Rule, in

contrast, provided that a Regional Director would certify

election results without regard to whether a request for review

25

was pending or still might be timely filed. See 79 Fed. Reg. at

74,487; see also 2019 Rule, 84 Fed. Reg. at 69,526, 69,554.

We hold that the provisions delaying certification of

election results fall outside the APA’s procedural exception

because they directly curtail the protective effect on employees

of the rights and interests that flow from the election of a

representative of their choosing. Delaying certification also

suspends the attachment of an employer’s legal duty to bargain

with a union that has won an election. Such a change “trenches

on substantial private rights and interests,” necessitating notice

and comment before it is made. Mendoza, 754 F.3d at 1023

(citation omitted).

In its briefing, the AFL-CIO explains that delayed

certification prevents unions from bargaining on behalf of

employees—sometimes “for a significant period of time, even

years.” AFL-CIO Principal & Response Br. 39. For

employees who voted for a union expecting it would bargain

for better terms and conditions of employment, delayed

certification deprives them of a key benefit during that entire

period. See id. Such deprivation may also erode employees’

support for a union that seems unable to deliver promptly on its

promise. See id. At oral argument, the AFL-CIO elaborated

on those points, referencing the challenge of “bargain[ing] a

first contract,” Oral Arg. Tr. 37:3-4, and the difficulty “for a

union to maintain [its] cohesion during that period” after it has

won an election but not yet been able to bargain because

certification is delayed, id. at 39:14-15.

The AFL-CIO also emphasizes the importance of, first, the

effect of delayed certification on an employer’s duty to bargain

in good faith and, second, its effect on the duty not to make

unilateral changes in terms and conditions of employment

during the term of an existing collective bargaining agreement.

26

See id. at 37:14-38:1. The Board argues that the effects of

delay are remediable but addresses only the second of those

two effects. It points out that the obligation to refrain from

making any unilateral changes extends back to the date of the

election, not certification, meaning that, if an employer makes

unilateral changes but the union is ultimately certified, those

changes can be challenged as unfair labor practices. See NLRB

Principal Br. 63 & n.174; see also Oral Arg. Tr. 37:17-19. But

an employer’s duty to bargain in good faith to reach agreement

on terms and conditions of employment—a duty it owes even

to employees not yet covered by any collective bargaining

agreement—originates on the date of certification. See Oral

Arg. Tr. 37:19-23; see also NLRB Principal Br. 63. Thus,

unions and the employees they represent have no opportunity

to later redress delayed certification’s impairment of their new

right to bargain for terms of employment.

The Board and dissent do not contest those assertions. Nor

do they deny that an employer’s duty to bargain arises at

certification, such that delaying certification eliminates

employees’ right to have their union promptly engage in

collective bargaining on their behalf post-election. See NLRB

Principal Br. 63 (distinguishing between “the duty to bargain

in good faith” and “other duties, such as an employer’s

obligation to refrain from making unilateral changes” that

“extend back to the date of the election, not certification”); Oral

Arg. Tr. 46:6-8 (Board counsel stating that, “outside of this

specific bargaining obligation, virtually every other

meaningful right that attaches to the union representation issue

goes back to the election”); Diss. Op. 11-15.

In characterizing the delayed-certification provisions as

rules of agency procedure, the Board and dissent insist that,

“[a]s a practical matter,” delayed certification has “de minimis

impact on unions.” NLRB Principal Br. 63; see Diss. Op. 13.

27

According to the Board, its “regional offices generally have not

issued unfair labor practice complaints asserting that

employers were not bargaining pursuant to certifications that

are subject to pending requests for review.” NLRB Principal

Br. 63 (citing D.A. 217 (2019 Rule, 84 Fed. Reg. at 69,555));

see also Diss. Op. 13. In effect, the Board and our dissenting

colleague point to the Board’s own underenforcement of

employers’ duty to bargain as a reason why a rule formally

delaying certification does not affect employees’ substantive

rights or interests.

But that practice does not negate the fact that the new

provisions delaying certification shift the parties’ substantive

burdens during the post-election period. As the Board

explained in the 2019 Rule, the issuance of a certification under

the prior rule despite the pendency of a request for review

placed the risk on the employer to either refuse to bargain while

awaiting the Board’s ruling and thereby commit an unfair labor

practice if it loses on review, or to proceed to bargain while

awaiting the Board’s ruling even though a win on review could

prove bargaining to have been unnecessary. 84 Fed. Reg. at

69,554-55. Materially diminishing employers’ incentives to

bargain promptly upon certification curtails employees’

enjoyment of the legal rights that flow from a valid

certification. Thus, the delayed-certification provisions are

substantive rules that required notice and comment.

The dissent further contends that we “fail[] to distinguish”

our decisions in Lamoille, JEM Broadcasting, and Public

Citizen—which, according to our dissenting colleague, each

involved rules that altered the “timing for exercising

substantive rights.” Diss. Op. 13-14 (citing Lamoille, 711 F.2d

at 327; JEM Broad. Co., 22 F.3d at 322, 326-27; Pub. Citizen,

276 F.3d at 637). But there is a material distinction. The rules

at issue in Lamoille and JEM Broadcasting altered the

28

“timetable for asserting substantive rights” before an agency—

not the timetable for exercising a substantive right itself.

Lamoille, 711 F.2d at 328 (emphasis added). In other words,

the rules at issue in those cases were primarily directed toward

regulating the manner in which parties present their views or

otherwise submit requests to the agency, as opposed to their

exercise of substantive rights or interests outside of any

agency-facing proceeding. In Lamoille, we examined an

agency’s decision to expedite its schedule for considering

merger applications and to truncate from 90 days to 60 days the

period in which competing railroads could file responses to a

proposed merger. Id. at 326-27. And in JEM Broadcasting,

the rule at issue established a “fixed filing period” for license

applications for particular commercial FM radio channels and

set a 30-day limit on application amendments. 22 F.3d at 322,

327-28. Both those rules set deadlines for filings seeking

agency decisions.

Similarly, the rule considered in Public Citizen affected

the manner in which parties make requests to an agency,

without altering their substantive rights or interests. See 276

F.3d at 640-41. Specifically, the rule directed State

Department personnel to search only for responsive documents

that existed prior to the date of a FOIA request, thereby leaving

applicants to submit additional FOIA requests to obtain

documents created after their request was filed. See id. at 637,

640-41. Even as, broadly speaking, the certification delay

challenged here, like each of those three cases, involves some

form of “timing” change, none of the three prior cases involved

a rule that suspended a party’s entitlement to a substantive right

or interest.

The provisions delaying certification do just that: They

eliminate an employer’s legal duty to bargain with a union that

has won an election during the time it takes the Board to resolve

29

any requests for review or, in the absence of any such request,

until the time for seeking Board review has elapsed. See 2019

Rule, 84 Fed. Reg. at 69,597-99 (codified at 29 C.F.R.

§ 102.69(b), (c)); see also id. at 69,526. That direct impact on

an employer’s legal duty and its employees’ associated

substantive right is what distinguishes the provisions delaying

certification from the rules at issue in Lamoille, JEM

Broadcasting, and Public Citizen—and excludes them from the

shelter of the procedural exception. See, e.g., Glickman, 229

F.3d at 280 (“[Procedural rules] do not themselves alter the

rights or interests of parties.” (quoting JEM Broad. Co., 22

F.3d at 326)).

Finally, the parties dispute whether delayed certification

also affects a union’s right to recognitional picketing under 29

U.S.C. § 158(b)(7). Compare, e.g., NLRB Principal Br. 64

(maintaining that it “is simply wrong to assert that this rule

affects a union’s right to picket for recognition, as the 30-day

limitation on picketing contained in Section 8(b)(7) of the

NLRA is eliminated by the filing of a petition” (footnotes

omitted)), and NLRB Response & Reply Br. 29 (same), with,

e.g., AFL-CIO Principal & Response Br. 37 n.12 (maintaining

that “[s]uch picketing would be unlawful absent certification if

continued for more than 30 days”). Because the effect of the

delayed-certification provisions on the right to collective

bargaining is sufficient to bring them outside the APA’s

procedural exception, we need not resolve the uncertainty

surrounding the time limits on recognitional picketing.

3. Election observers

Election observers play “the indisputably important role”

of “representing their principals, challenging voters, generally

monitoring the election process, and assisting the Board agent

in the conduct of the election.” 2019 Rule, 84 Fed. Reg. at

30

69,553. The Board has recognized that the presence of both

employer-selected and union-selected observers at elections

“help[s] to assure the parties and the employees that the

election is being conducted fairly.” Id. at 69,552 (quoting

Browning-Ferris Indus., 327 NLRB 704, 704 (1999)). The

choice of election observers bears on the foundational interest

in electoral legitimacy—both actual and perceived.

As the Board explained in the 2019 Rule, “[t]he practice

of permitting the parties to be represented by observers at

Board-conducted elections dates to the earliest days of the

Act,” even though “the Act itself does not make any provision

for observers to be present at an election.” Id. at 69,551. In its

decisional law, the Board has long characterized the policy as

a “privilege” or “courtesy” that it affords to parties, rather than

a right or entitlement. See id. (citations omitted). But it matters

not that the Board has so characterized its policy of allowing

election observers, because “we examine how the rule affects

not only the ‘rights’ of aggrieved parties, but their ‘interests’ as

well.” Chamber of Com., 174 F.3d at 212 (citation omitted).

The rule’s effect on regulated parties’ substantive interests in

choosing their own election observers suffices to remove it

from the category of procedural rules under the APA. See

Mendoza, 754 F.3d at 1023 (explaining that “[p]rocedural rules

do not themselves alter the rights or interests of parties”

(internal quotation marks and citation omitted) (emphasis

added)); accord Glickman, 229 F.3d at 280.

The 2019 Rule provides that for manual, or in-person,

elections,

any party may be represented by observers of its own

selection; whenever possible, a party shall select a

current member of the voting unit as its observer, and

when no such individual is available, a party should

31

select a current nonsupervisory employee as its

observer. Selection of observers is also subject to

such limitations as the Regional Director may

prescribe.

84 Fed. Reg. at 69,597 (codified at 29 C.F.R. § 102.69(a)(5))

(emphases added). By comparison, the 2014 Rule stated, in

relevant part, only that, “[w]hen the election is conducted

manually, any party may be represented by observers of its own

selection, subject to such limitations as the regional director

may prescribe.” 79 Fed. Reg. at 74,486.

The AFL-CIO argues that the 2019 Rule limits unions’

ability to select as observers former employees or union staff

members who are less likely to be subject to intimidation and

often more capable of “send[ing] a message to the employees

who are voting that this is a fair election.” Oral Arg. Tr. 35:17-

36:2. The AFL-CIO further contends that the ability to select

a former employee or union staff member as an observer can

be helpful when employees are “scared to sit . . . at the table . . .

in front of the[ir] employer.” Id. at 35:17-22.

We conclude the election-observer provision falls outside

the APA’s procedural exception because it “encodes a

substantive value judgment” about the type of observers that

best serve the policy goals animating the Board’s decision to

permit non-Board observers, Pub. Citizen, 276 F.3d at 640, and

so burdens regulated parties’ interests in fair elections. The

Board has long recognized parties’ choice of observers as an

important interest bearing on participants’ confidence in the

fair conduct of the elections. The Board itself has recognized

that the standards governing who may serve as an election

observer can directly affect the fairness and outcome of

elections, because employee-voters may be “intimidate[d]” by

the presence of certain types of observers, such as employees

32

with “disciplinary power.” 2019 Rule, 84 Fed. Reg. at 69,551

n.109 (quoting United States Gypsum Co., 81 NLRB 197

(1949)); see also id. at 69,552.

The Board candidly admitted that the core of the provision

in question—confining parties to select a current member of

the voting unit as their observer whenever possible—“is a new

innovation,” not a codification of any principle previously

developed in the Board’s precedent on observers. Id. at 69,553.

It therefore imposes a “new substantive burden[],” EPIC, 653

F.3d at 5 (citation omitted), on the parties by “alter[ing] the

standards imposed on” them when choosing observers,

Mendoza, 754 F.3d at 1024 (emphasis omitted). That

substantive character suffices to remove the provision from the

agency-procedure exemption from the notice and comment

requirement.

Our dissenting colleague does not dispute that the election-

observer provision “alter[s] the substantive criteria” by which

parties select observers. Glickman, 229 F.3d at 281. But she

claims the provision “does not encode a substantive value

judgment,” because “[t]he point [of the provision] is

transparency in an election procedure under the control of the

Board.” Diss. Op. 16. Transparency benefits do not negate the

provision’s substantive value judgment regarding the type of

observers best suited to achieve the Board’s policy goals. See,

e.g., 2019 Rule, 84 Fed. Reg. at 69,552. More fundamentally,

the Board’s role in supervising representation elections does

not convert every provision regarding election process into a

rule of agency procedure. Parties’ interests in choosing

representatives to observe elections and help ensure that

employees may vote free from intimidation are substantive

interests in the conduct of choosing or declining union

representation.

33

Nothing in Guardian requires us to treat the election-

observer provision here as a matter of agency procedure. Cf.

Diss. Op. 16-17 (citing Guardian, 589 F.2d at 665). The rule

at issue in Guardian concerned mandatory, annual audits of

federally insured savings and loan institutions pursuant to an

unchallenged provision that “specifie[d] in considerable detail

criteria that must be met before an audit or an auditor will be

satisfactory to” the Federal Savings & Loan Insurance

Corporation (FSLIC). 589 F.2d at 661. Guardian challenged

the part of FSLIC’s rule in which the agency “exercise[d] an

option” provided by a preexisting rule “to require that audits be

performed by accountants from the private sector,” rather than

as incidental to other examinations by FSLIC staff. Id. at 665.

We described the agency’s decision that its examiners would

no longer conduct those audits as “unquestionably one of

agency procedure.” Id. The Board’s election-observer

provision, unlike the FSLIC’s rule, is not the “necessary

consequence of,” id.—or even arguably related to—a decision

about the duties of NLRB staff. And election observers, unlike

auditors, play a role in representing unions and employers to

third parties—namely, employee-voters. See 2019 Rule, 84

Fed. Reg. at 69,553.

In short, because the election-observer provision imposes

new “substantive burden[s]” on the parties’ interests in fair

elections, employee-voters’ perceptions of both employer and

union, and voters’ ultimate confidence in the elections, it falls

outside the APA’s exception for “procedural” rules. EPIC, 653

F.3d at 5; accord Mendoza, 754 F.3d at 1023-24.

B. Procedural Rules

We turn next to the two remaining challenged provisions

of the 2019 Rule: those regarding pre-election litigation of

certain issues and a related adjustment to the default rule for

34

election scheduling. Unlike the other challenged provisions,

these two are principally “internal house-keeping” rules,

Bowen, 834 F.2d at 1045; they are both “primarily directed

toward improving the efficient and effective operations of [the]

agency,” Mendoza, 754 F.3d at 1023 (quoting Batterton, 648

F.2d at 702 n.34), and “impose[] no new substantive

obligations” or burdens upon the parties’ rights and interests,

EPIC, 653 F.3d at 6. We therefore hold that these two

provisions are procedural rules exempt from notice and

comment under section 553.

1. Pre-election litigation of voter eligibility, unit

scope, and supervisory status

As referenced above, employers and unions sometimes

disagree over which employees may be appropriately

encompassed within a bargaining unit. Such disputes affect

who is eligible to vote in an election: only votes cast by

employees who would be within the proposed unit count

toward determining the outcome of the election. For example,

parties may disagree about whether an employee is a supervisor

and accordingly excluded from the NLRA’s protections,

outside any proposed bargaining unit, and ineligible to vote. In

most cases, the parties resolve such disputes through election

agreements. But when the parties do not settle those issues

themselves, it falls to the NLRB to decide them.

Under the 2019 Rule, “[d]isputes concerning unit scope,

voter eligibility and supervisory status will normally be

litigated and resolved by the Regional Director before an

election is directed.” 84 Fed. Reg. at 69,593 (codified at 29

C.F.R. § 102.64(a)). That presumption replaced the 2014

Rule’s provision that “[d]isputes concerning individuals’

eligibility to vote or inclusion in an appropriate unit ordinarily

need not be litigated or resolved before an election is

35

conducted.” 79 Fed. Reg. at 74,482. Under the old rule,

individuals whose disputed eligibility was undecided at the

time of the election would cast their votes subject to challenge.

After the election, the eligibility or inclusion disputes would be

resolved as necessary, such as when the votes of the contested

individuals could affect the outcome of the election or, if the

pro-union votes prevailed in any event, to determine whether

contested individuals were appropriately treated as part of the

bargaining unit.

The AFL-CIO argues that this provision of the 2019 Rule

falls outside the APA’s procedural exception because it “vests

parties with an affirmative, substantive right, most often

exercised by the employer, to obtain a pre-election advisory

opinion regarding the status of individual employees.” AFL-

CIO Principal & Response Br. 28-29. It further contends the

provision is substantive because it builds in a source of

unjustified delay by “add[ing] the prerequisite of resolving

these individual eligibility issues before a petitioning party may

obtain a Board election.” Id. at 28. It asserts the prior practice

of deferring resolution of eligibility and scope questions until

after an election was more efficient where the margin of

election victory was sufficient to moot the ballot challenges.

The Board responds that the provision merely changes

“when those issues are presented to, and decided by, the

Board,” NLRB Principal Br. 55 (emphasis in original), and,

even then, only “in the small number of contested election

cases”—around ten percent—“that the Board hears per year,”

id. at 57. At least some of the contested election cases are too

close to moot ballot disputes. And even when a union’s win is

decisive, disputes affecting individuals’ inclusion or not in the

unit remain live. See NLRB Response & Reply Br. 19-20.

36

The provision calling on the Regional Director typically to

decide issues of voter eligibility and unit scope before rather

than after the election is procedural, not substantive. It is

directed at “agency actions that do not themselves alter the

rights or interests of parties.” Glickman, 229 F.3d at 280

(quoting JEM Broad. Co., 22 F.3d at 326). And it does not

appear from the record that reversing the presumptive pre-

election timing of those decisions “substantively affects”

regulated parties to a “degree sufficient to implicate the policy

interests animating notice-and-comment rulemaking.” EPIC,

653 F.3d at 6. As the Board explained in the 2019 Rule, the

provision marks a return to the pre-2014 approach. See 84 Fed.

Reg. at 69,525.

In holding that the provision falls outside the procedural

exception, the district court expressed concern that reverting to

a process associated with delays “will hinder the employees’

prospects of mobilizing a sufficient number of peers to

unionize the workplace,” AFL I, 466 F. Supp. 3d at 91, but the

AFL-CIO itself does not so argue. Indeed, the AFL-CIO’s own

expert concluded that the 2014 Rule, successfully shortening

case times, did not affect rates of unionization. D.A. 103. The

expert similarly found that statistics regarding frequency and

length of hearings were unaffected by the shift in their

presumptive timing: “Neither the probability of a case’s

having a pre-election hearing nor the average length of those

hearings changed, over time or in the wake of the [2014] rule

change.” D.A. 111.

Contrary to the AFL-CIO’s assertion, the provision calling

on Regional Directors to decide eligibility disputes before an

election cannot fairly be said to create an “affirmative,

substantive right” in any party to insist that they do so. AFL-

CIO Principal & Response Br. 28-29. By its terms, the

provision sets only the sequence Regional Directors

37

“normally” should follow. 2019 Rule, 84 Fed. Reg. at 69,540.

It neither prevents parties from agreeing to defer resolutions

until after an election, nor prevents Regional Directors from

deciding over objection to defer decision of eligibility disputes

in appropriate cases. See id. at 69,541-42 (noting that rule

establishes only when Regional Directors “normally” will

decide, and that the new provision is “not imposing a

requirement that, absent agreement of the parties to the

contrary, all eligibility issues must be resolved prior to an

election” but preserves “the discretion of the regional director

to defer eligibility and inclusion issues”).

The record, then, does not bear out the contention that the

parties’ substantive rights or interests are affected by returning

to the pre-2014 default sequence for the Regional Director’s

resolution of issues of voter eligibility, unit scope, and

supervisory status. The change principally affects the manner

in which employers and unions present themselves and their

views to the Board and in which it decides their disputes, rather

than the parties’ substantive rights or interests. See Lamoille,

711 F.2d at 328; Glickman, 229 F.3d at 280-81; JEM Broad.

Co., 22 F.3d at 327-28; cf. Mendoza, 754 F.3d at 1023-24.

Specifically, for elections not conducted pursuant to election

agreements, the provision sets the sequence the NLRB expects

its Regional Directors ordinarily to follow in deciding disputed

questions of eligibility and scope.

We accordingly hold that the provision regarding pre-

election litigation is a procedural rule validly promulgated

without prior notice and comment.

2. Election scheduling

Following the pre-election hearing that occurs in those

cases not conducted under an election agreement, the Regional

Director either dismisses the petition calling for an election if

38

no question of representation exists or, if she identifies such a

question, issues a decision and direction of election. The

direction of election often includes details like the date of the

election.

The 2019 Rule builds in a presumptive waiting period of

twenty business days immediately following the direction of

election to allow the Board to rule on disputes between the

parties. It states that the Regional Director

shall schedule the election for the earliest date

practicable, but unless a waiver is filed, the Regional

Director will normally not schedule an election

before the 20th business day after the date of the

direction of election, to permit the Board to rule on

any request for review which may be filed.

2019 Rule, 84 Fed. Reg. at 69,595 (codified at 29 C.F.R. §

102.67(b)). By contrast, the 2014 Rule simply provided that

“[t]he regional director shall schedule the election for the

earliest date practicable.” 79 Fed. Reg. at 74,485. In the 2019

Rule, the Board acknowledged that the new provision will

generally result in about four weeks between the direction of

election and the election itself, as compared to about two weeks

under the 2014 Rule. See 84 Fed. Reg. at 69,546.

The AFL-CIO argues that the 2019 Rule’s election-

scheduling provision is substantive because it “deprives a

petitioning party of its existing right to a prompt election,”

AFL-CIO Principal & Response Br. 31, and affects “how much

time parties have to communicate with employees prior to the

election,” id. at 32 (internal quotation marks and citation

omitted). The Board responds that we have previously held

that “changes to agency timelines are procedural, not

substantive,” NLRB Principal Br. 58-59 (citing Lamoille, 711

F.2d at 328), and that the provision addresses “the internal

39

workings of the agency by, among other effects, giving the

Board more time to rule on requests for review prior to

elections,” id. at 60.

We hold that the election-scheduling provision is

procedural. Like the rule at issue in Lamoille, it comprises part

of the “timetable for [regulated entities to] assert[] substantive

rights,” 711 F.2d at 328, namely, particular employees’ right to

vote for or against a union to represent them as a defined bloc.

And, as in Lamoille, the relevant inquiry is whether the

timetable unduly constrains the rule challenger’s opportunity

to state its case. See id. Whereas in Lamoille, the “proper

question” was “whether the time allotted [was] so short as to

foreclose effective opportunity to make one’s case on the

merits,” id., here, we might in fairness reverse the question:

whether the time allotted between the direction of election and

the election itself is so long as to impede a union’s opportunity

to make its case on the merits to employee-voters. Indeed, the

longer a case drags on, the more risk that support for a union

(or other impetus to call for an election in the first place) will

dissipate. Cf. Oral Arg. Tr. 36:16-37:8, 39:10-18 (counsel for

the AFL-CIO explaining that delays in bringing a

representation case to resolution can diminish employees’

support for a union).

The time allotted by the election-scheduling provision is

not so long as to impede the union’s opportunity to make its

case to employee-voters. Like the provision regarding pre-

election litigation of certain issues, the election-scheduling

provision is a return to the pre-2014 rules for representation

cases. See 2019 Rule, 84 Fed. Reg. at 69,525. The pre-2014

rules provided for twenty-five to thirty calendar days between

the direction of election and the election itself, which is

functionally equivalent to the twenty business days specified in

the 2019 Rule. See id. at 69,545. And the evidence in the

40

record shows that this timing change did not affect the rate at

which unions or employers prevailed. See id. at 69,528; D.A.

103.

Finally, the election-scheduling provision is directed

toward improving the efficient and effective operations of the

Board, which generally indicates a procedural, rather than

substantive, rule. See Mendoza, 754 F.3d at 1023. The

provision itself specifies that the twenty-business-day period is

“to permit the Board to rule on any request for review which

may be filed,” 2019 Rule, 84 Fed. Reg. at 69,595 (codified at

29 C.F.R. § 102.67(b)), reflecting the agency’s preferred

approach to “internal house-keeping.” Bowen, 834 F.2d at

1045. As the Board elaborated in the Rule, it gives the Board

“a realistic opportunity” to “decid[e] issues prior to the election

. . . [and] contribute[s] to a more efficient resolution of the

question of representation by clearing away issues that may

otherwise linger on after the election.” 2019 Rule, 84 Fed. Reg.

at 69,546.

The precise timing of an election does not itself alter any

extant legal duty; it presumptively delays the process for

determining whether the employer’s legal duty to bargain

(among other duties) will even arise. That distinguishes the

Board’s election timing provision from the provision delaying

certification of election results. Only the latter directly alters

an employer’s legal duty and its employees’ associated

substantive right during a certain period post-election. See

supra Section II.A.2. We accordingly conclude that our

precedent places the election-timing provision on the

procedural side of the section 553 procedural/substantive

dividing line even as the delayed-certification provision is

properly treated as substantive. See Mendoza, 754 F.3d at

1023-24.

41

In sum, we hold that the Board acted permissibly in

treating the election-scheduling provision as a procedural rule

and promulgating it without notice and comment.

III. Arbitrary-and-Capricious Challenge to the 2019 Rule

as a Whole

In its cross-appeal, the AFL-CIO claims that the 2019 Rule

as a whole is arbitrary and capricious in violation of the APA.

It emphasizes the “uncontroverted evidence” that the 2014

Rule significantly reduced the overall duration of

representation cases. AFL-CIO Principal & Response Br. 44;

see also id. at 47. And it argues that the Board’s rationale that

the 2019 Rule promotes finality is insupportable given that the

Rule “extend[s] multiple deadlines, permit[s] more litigation,

and delay[s] the attachment of legal duties.” Id. at 44. The

AFL-CIO accuses the Board of ignoring data on the 2014

Rule’s effect on case timelines, id. at 47-48, and criticizes the

Board for “not even cit[ing] anecdotal evidence of problems

with the deadlines” established by the earlier rule, id. at 51.

But, as the district court explained, “the record establishes

that the Board exercised its discretion with relevant

information in hand and with eyes wide open concerning the

impact of the significant changes that it was adopting.” AFL

II, 471 F. Supp. 3d at 241 (citing Am. Hosp. Ass’n v. NLRB,

499 U.S. 606, 618-19 (1991)). Thus, the 2019 Rule as a whole

passes muster under the APA.

In the extensive preamble to the 2019 Rule, running more

than thirty pages, the Board repeatedly acknowledges that its

changes will result in longer waits before elections relative to

the 2014 Rule. See, e.g., 2019 Rule, 84 Fed. Reg. at 69,528,

69,546, 69,557. And the Board expressly notes the evidence

that the AFL-CIO says it ignored—“that the median time

between the filing of a petition and the election has been

42

significantly reduced since the 2014 amendments became

effective.” Id. at 69,528; see also id. at 69,528 n.15 (citing

statistics on case lengths). The Board nonetheless concludes

that the 2014 Rule’s “gains in speed have come at the expense

of other relevant interests,” like transparency and uniformity,

and finality and certainty, id. at 69,528-29, and, in the 2019

Rule, made “non-statistical policy choices” about how to

further those other interests, id. at 69,557.

The Board gives a rational account of how the 2019 Rule

advances interests apart from speed. For example, the Board

adequately explains that the election-scheduling provision—

which supplements the “earliest date practicable” language

with a default minimum period of twenty business days—

promotes transparency and uniformity by making the timing of

elections more predictable for parties. See id. at 69,546. It also

explains that the provision regarding pre-election litigation of

voter eligibility, unit scope, and supervisory status could

provide employee-voters with more complete information

about “who they are voting to join in collective bargaining.”

Id. at 69,541.

On finality, the district court aptly distinguished between

the different forms that interest might take, and how the Board

might value one form over another. On the one hand is the kind

of finality that “requires all disputes about the outcome of an

election to be resolved prior to certification,” which prizes the

“definitiveness” of certification. AFL II, 471 F. Supp. 3d at

242. On the other hand is “finality in terms of efficient election

results that facilitate relatively rapid certification,” but with the

potential that such a certification could be undone if the Board

ultimately granted a request for review. Id.

In the 2019 Rule, the Board makes clear its preference for

the former kind of finality. Early on, the Board asserts

43

generally that “[t]he mere fact that elections are taking place

quickly does not necessarily mean that this speed is promoting

finality or the most efficient resolution of the question of

representation.” 2019 Rule, 84 Fed. Reg. at 69,529 (emphasis

added). Later, in the context of the provision calling for pre-

election resolution of issues like unit scope, it explains that “the

Board should strive to maximize the opportunity for an election

vote to provide immediate finality, subject only to the filing of

objections to conduct allegedly affecting the results,” which

necessarily cannot be litigated before an election. Id. at 69,540.

Regardless of whether one agrees with those explanations as a

policy matter, we cannot say they are irrational.

The Board’s weighing of competing interests—including

variations on the same interest—in the 2019 Rule was

reasonable and sufficiently explained. The Rule therefore is

not arbitrary and capricious as a whole.

IV. The 2019 Rule’s Impoundment Provision

Under the 2019 Rule, if a party files a request for review

of a direction of election within ten business days of its

issuance by the Regional Director, and the Board either grants

the request or does not rule on it before the election occurs, then

“all ballots shall be impounded and remain unopened pending

such ruling or decision.” 84 Fed. Reg. at 69,595 (codified at

29 C.F.R. § 102.67(c)). The AFL-CIO claims that the

impoundment provision violates the APA in two respects.

First, it argues that the provision is arbitrary and capricious, in

part because it “forc[es] the Board to automatically decide any

issue timely raised in a request for review without evaluating

whether the particular issue is likely to be rendered moot by the

election results.” AFL-CIO Principal & Response Br. 54.

Second, the AFL-CIO argues that the provision is contrary to

law, namely, section 3(b) of the Act.

44

Section 3(b) of the Act allows the Board to delegate certain

powers regarding the resolution of representation cases to

Regional Directors. As relevant here, it provides that “the

Board may review any action of a regional director delegated

to him under this paragraph, but such a review shall not, unless

specifically ordered by the Board, operate as a stay of any

action taken by the regional director.” 29 U.S.C. § 153(b).

Because we hold that the impoundment provision is contrary to

law as a prohibited stay of action by Regional Directors and

vacate it on that basis, we need not address the AFL-CIO’s

claim that it is arbitrary and capricious.

The impoundment provision “operate[s] as a stay” for

purposes of section 3(b). Id. As the Board concedes,

impoundment “postpones the count[ing]” of ballots. 2019

Rule, 84 Fed. Reg. at 69,548. And the counting of ballots is an

“action taken by the regional director” as part of her delegated

authority under section 3(b). 29 U.S.C. § 153(b). The

impoundment provision thus falls squarely within the meaning

of a “stay” under section 3(b).

The Board strains against the statute’s plain text. It argues

that section 3(b) speaks only to “a stay of any action taken by

the regional director,” NLRB Response & Reply Br. 59

(citation omitted), and that, because impounding ballots

happens “before the Regional Director issues a certification,

that is, before an action has been ‘taken,’” it is not a “stay”

within the meaning of that section, id. at 61. Alternatively, the

Board argues that, even if section 3(b) were ambiguous as to

whether impounding ballots is “a stay of any action taken”—

because “taken” might refer only to past action or both past and

future action—its interpretation of 3(b) as referring only to past

action is reasonable. See id. at 63-68.

45

The Board’s arguments miss the mark. Section 3(b) is

clear: “a stay of any action taken” applies to past, present, and

future actions taken by the Regional Director. As the AFL-

CIO explains, the word “taken” in section 3(b) is a “participial

adjective modifying the noun ‘action,’” not part of a “past tense

verb phrase.” AFL-CIO Principal & Response Br. 59. Used in

that way, the word “taken” is timeless; it refers to past, present,

and future action. See Henson v. Santander Consumer USA

Inc., 137 S. Ct. 1718, 1722 (2017); see also Diss. Op. 19 n.5.

Accordingly, impoundment “operates as a stay” under section

3(b) regardless of whether the impoundment occurs before the

Regional Director issues a certification. 29 U.S.C. § 153(b).

Even if section 3(b) were ambiguous (it is not), the Board’s

interpretation would not carry the day. In reviewing agency

action, “we look only to what the agency said at the time of the

rulemaking—not to its lawyers’ post-hoc rationalizations.”

Good Fortune Shipping SA v. Comm’r, 897 F.3d 256, 263

(D.C. Cir. 2018) (internal quotation marks and citation

omitted). The Board’s explanation in the preamble does not so

much as mention the word “taken.” See 2019 Rule, 84 Fed.

Reg. at 69,547-49. And the cursory explanation that the Board

did provide does not do the trick. In attempting to reconcile

the impoundment provision with section 3(b) of the Act, the

Board said that “impounding the ballots is not a ‘stay’ of the

regional director’s action” because “impoundment only

postpones the count.” Id. at 69,548. But insisting that

something is not a “stay” because it is actually a

“postpone[ment]” is no explanation at all. The Board’s defense

of its impoundment provision, thus, fails to persuade.

Our dissenting colleague’s alternative defense of the

Board’s impoundment provision fares similarly. She agrees

with our conclusion that the provision operates as a stay, see

Diss. Op. 18-19, but contends that “the Board has specifically

46

ordered a stay” via “rulemaking,” making it permissible under

section 3(b), id. at 20. Tellingly, the Board did not itself rely

on the “specifically ordered” clause in section 3(b) as an

affirmative argument. See NLRB Response & Reply Br. 58-

69.

The dissent’s reading of that clause is not viable. Recall

that section 3(b) provides:

[U]pon the filing of a request therefor with the Board

by any interested person, the Board may review any

action of a regional director delegated to him under

this paragraph, but such a review shall not, unless

specifically ordered by the Board, operate as a stay

of any action taken by the regional director.

29 U.S.C. § 153(b). The statutory text makes plain that

“specifically ordered by the Board” means ordered in a given

case, not ordered as a general matter by rulemaking. Id.

Indeed, the phrase “unless specifically ordered by the Board”

modifies the circumstances under which “such a review shall

not . . . operate as a stay of any action taken by the regional

director.” Id. (emphasis added). “[S]uch a review” refers to

the Board’s review in a particular case; it is “a review” that

arose “upon the filing of a request therefor with the Board.” Id.

In sum, section 3(b) permits the Board’s “review” in a

particular case to “operate as a stay of any action taken by the

regional director” only when “specifically ordered by the

Board” in that case. Id. Section 3(b)’s “specifically ordered”

clause does not disturb our conclusion that the impoundment

provision is contrary to law.

***

For the foregoing reasons, we affirm the district court’s

rulings that it had jurisdiction over the AFL-CIO’s challenge to

47

the 2019 Rule, and that the Rule is not arbitrary and capricious

as a whole. However, we reverse in part the district court’s

ruling on the APA’s procedural exception, leaving the court’s

vacatur in place only as to the provisions regarding an

employer’s production of voter lists, delayed certification, and

election observers. Those three provisions must remain

vacated unless and until the Board repromulgates them with

notice and comment. We also reverse the district court’s ruling

that the impoundment provision is not contrary to law and thus

vacate that provision as well.

Because we reverse in part the district court’s ruling on the

APA’s procedural exception but affirm its ruling that the Rule

is not arbitrary and capricious as a whole, we remand for the

court to consider the AFL-CIO’s remaining claims—the

undecided claims in Counts Three and Four—in the first

instance.

So ordered.

RAO, Circuit Judge, concurring in the judgment in part and

dissenting in part: The National Labor Relations Board has

adjusted the rules for representation elections more than three

dozen times without notice and comment since 1961. The 2019

Rule at issue here is the latest iteration. It reverses several 2014

changes to details of election administration. Applying an

obsolete legal standard, the majority holds for the first time that

some of the Rule’s provisions are substantive and therefore do

not fall under the Administrative Procedure Act’s (APA)

exception to notice and comment for procedural rules. See 5

U.S.C. § 553(b)(A). Under the correct standard, however, these

are classic procedural rules and notice and comment was not

necessary. In promulgating them, the Board balanced one

procedural interest (speed) against others (like finality and

transparency). I would also uphold an undisputedly procedural

provision that requires ballots to be impounded pending review

of an election by the Board because the provision is consistent

with statutory requirements and reasonably explained.

The Board has discretion to direct and manage disputes

over representation, and it has properly issued procedural rules

that do so. Because I would uphold the 2019 Rule in its entirety,

I respectfully dissent.

I.

The Board oversees the formation of collective bargaining

relationships between private companies and their employees.

National Labor Relations Act of 1935, Pub. L. No. 74-198, 49

Stat. 449 (codified as amended at 29 U.S.C. §§ 151–69). When

employees seek to unionize, the Board is responsible for

directing elections and certifying the results. 29 U.S.C.

§ 159(c). As part of this responsibility, the Board has long

prescribed and regularly updated rules for election

administration. The majority summarizes this history but

glosses over two important points. First, the overwhelming and

2

previously unchallenged practice of the Board has been to issue

rules of election administration without notice and comment.

Second, these rules have consistently balanced procedural

interests, particularly the speed, finality, transparency, and

uniformity of elections. The 2019 Rule is no different.

The Board first promulgated a set of rules to govern

elections in 1961. The rules revamped the entire election

process, delegated authority to regional directors to resolve

pre-election disputes and run elections, and significantly

decreased the time it took to conduct elections. Representation-

Case Procedures, Notice of Proposed Rulemaking, 79 Fed.

Reg. 7,318, 7,320 (Feb. 6, 2014) (recounting history). The

Board nevertheless issued the rules without notice and

comment. In the following decades, the Board modified its

election rules more than three dozen times, always without

notice and comment. Representation-Case Procedures, Final

Rule, 79 Fed. Reg. 74,308, 74,310 (Dec. 15, 2014). When, in

2011 and 2014, the Board broke with this practice and used

notice and comment to modify its election rules, it emphasized

that notice and comment was unnecessary. Id. at 74,311;

Representation-Case Procedures, Final Rule, 76 Fed. Reg.

80,138, 80,148 (Dec. 22, 2011). The Board promulgated the

2019 Rule at issue here without notice and comment,

explaining that the Rule was procedural and the additional

process unnecessary. Representation–Case Procedures, Final

Rule, 84 Fed. Reg. 69,524, 69,528 (Dec. 18, 2019).

The Board has correctly classified election rules as

procedural for over 60 years.1 Adjustments to the rules have

been aimed at archetypal procedural values, such as ensuring

1

If the election rules were properly deemed substantive, a

longstanding practice of the Board would not insulate them from the

requirements of notice and comment rulemaking.

3

votes are “recorded accurately, efficiently and speedily.” See

NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946) (describing

the Board’s goals for its election rules and regulations). The

oscillation over time can be explained by the fact that some

values compete and experience may cause the Board to strike

a different balance. For example, the Board has long worked to

speed up the election process, including in the 2014 Rule. 84

Fed. Reg. at 69,528. But the Board has also sought to improve

the transparency, uniformity, and finality of elections. Id. at

69,529.

In 2019, the Board made some modifications to promote

finality and predictability, explaining the “gains in speed” over

the years had “come at the expense of other relevant interests.”

Id. at 69,528–29. The Board acknowledged the changes might

come “at the cost of some promptness,” but concluded the

benefits outweighed the costs. Id. at 69,548. “[T]he mere fact

that an election is conducted promptly does not mean that the

question of representation has been resolved.” Id. at 69,545.

The Board has an interest in promoting finality and certainty to

employers and unions, ensuring that election challenges do not

“linger on … for weeks, months, or even years.” Id. at 69,529.

As it has for more than six decades, the Board considered and

traded off various procedural values in its latest modification

to the rules governing election administration.

II.

The AFL-CIO argues that the 2019 Rule is substantive and

thus the Board was required to follow notice and comment

procedures. When an agency promulgates a rule, usually it

must publish notice in the Federal Register and submit the rule

to the public for comment. 5 U.S.C. § 553(b)–(c). But some

rules are exempt, including “rules of agency organization,

procedure, or practice.” Id. § 553(b)(A). This case requires us

4

to distinguish “substantive” rules on the one hand, which are

subject to notice and comment, from “procedural” rules on the

other, which are not. While the line between substantive and

procedural rules is sometimes difficult to discern, following the

principles articulated by our decisions over the last few

decades, the 2019 Rule is procedural and therefore was

properly promulgated without notice and comment.

To determine whether a rule is procedural or substantive,

we ask whether it “encodes a substantive value judgment.”

Pub. Citizen v. Dep’t of State, 276 F.3d 634, 640 (D.C. Cir.

2002) (quoting Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1047

(D.C. Cir. 1987)). In particular, a substantive rule encodes a

value judgment about primary conduct whereas a procedural

rule governs secondary conduct. See Air Transp. Ass’n of Am.

v. Dep’t of Transp., 900 F.2d 369, 383 (D.C. Cir. 1990)

(Silberman, J., dissenting), remanded, 498 U.S. 1077 (1991),

vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991); JEM Broad.

Co. v. FCC, 22 F.3d 320, 328 (D.C. Cir. 1994) (disavowing the

Air Transport majority’s reasoning and noting the majority is

no longer binding precedent); cf. Landgraf v. USI Film Prods.,

511 U.S. 244, 275 (1994) (“[R]ules of procedure regulate

secondary rather than primary conduct.”). For example,

“judgment[s] about what mechanics and processes are most

efficient” are procedural. JEM Broad., 22 F.3d at 328. A

procedural rule does not become substantive solely because the

parties prefer one type of procedure over another. “All

decisions, to the extent that they derive from reasons,

necessarily are based on the value judgment that the chosen

option is better, in some relevant way, than its alternatives.”

James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282

(D.C. Cir. 2000).

The mine run of facially procedural rules will in fact be

procedural; however, even a rule that is facially procedural may

5

be deemed substantive if the effects are so “sufficiently grave”

or create such an “extreme procedural hurdle[]” that the

substance swallows the procedure. See Lamoille Valley R.R. v.

ICC, 711 F.2d 295, 328 (D.C. Cir. 1983). Moreover, if a rule

of procedure “substantively affects the public” in some

ancillary way, it might require notice and comment because of

those impacts. Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland

Sec., 653 F.3d 1, 6 (D.C. Cir. 2011) (“EPIC”) (recognizing the

“personal privacy” impact on the public of TSA technology

that produced “an image of the unclothed passenger”).

Instead of following these decisions, the majority in effect

applies a 1970s framework in which “substantial impact” was

the touchstone of a substantive rule. See Pickus v. U.S. Bd. of

Parole, 507 F.2d 1107, 1112 (D.C. Cir. 1974). While nodding

to our more recent cases, the majority primarily evaluates

whether the 2019 Rule has something like a “substantial

impact” on the parties. The majority begins its analysis of each

rule by looking at the degree to which “substantial” rights or

interests are impacted. This is the wrong threshold question—

at the outset we consider whether a rule regulates primary or

secondary conduct. A rule is presumed procedural when it

regulates only secondary conduct and the mere fact that such a

rule impacts legal rights does not make it a substantive rule.

The majority avoids the language of substantial impact, but

uses synonyms that amount to the same thing, considering

whether the Rule “direct[ly] impact[s],” “burdens,” “affects,”

“curtails,” or “trenches on” various rights and interests.

The majority’s analysis is directly at odds with this

circuit’s more recent decisions. We have repeatedly held that a

“substantial impact” or “substantial burden” does not make a

rule substantive. See Glickman, 229 F.3d at 281 (“[E]ven if the

[rule] did impose a substantial burden … that burden would not

convert the rule into a substantive one that triggers the APA’s

6

notice-and-comment requirement.”); EPIC, 653 F.3d at 5 (“[A]

rule with a ‘substantial impact’ upon the persons subject to it is

not necessarily a substantive rule under § 553(b)(3)(A).”); cf.

Cabais v. Egger, 690 F.2d 234, 237 (D.C. Cir. 1982) (noting,

in the context of interpretive rules, that just because an “agency

action has substantial impact does not mean it is subject to

notice and comment”). We retired the substantial impact or

burden test because “even unambiguously procedural measures

affect parties to some degree.” Pub. Citizen, 276 F.3d at 640

(cleaned up).

Moreover, determining whether a rule impacted, affected,

or burdened substantive rights did not track the text of the APA

or comply with the Supreme Court’s command in Vermont

Yankee to avoid extratextual procedures. See Cabais, 690 F.2d

at 237 (“Since Vermont Yankee, it is clear that a court cannot

engraft additional procedures on agency action beyond those

contemplated by the APA.”) (cleaned up). As we have

recognized, “[o]f course, procedure impacts … outcomes and

thus can virtually always be described as affecting substance,

but to pursue that line of analysis results in the obliteration of

the distinction that Congress demanded.” JEM Broad., 22 F.3d

at 326 (quoting Air Transp., 900 F.2d at 383 (Silberman, J.,

dissenting)).

If a rule is procedural on its face that will usually be the

end of the matter unless the effects of the rule are “sufficiently

grave” or create an “extreme procedural hurdle.” Lamoille

Valley, 711 F.2d at 328. In true boundary cases, our standards

recognize that the distinction between procedural and

substantive rules may collapse and that unusual or onerous

procedures may in fact be more akin to substantive rules.

Considering the edge cases of “extreme procedural hurdles”

ensures agencies are not regulating the primary conduct of

private parties without public notice and comment.

7

To summarize, for a procedural rule to fit within the

APA’s exception to notice and comment requirements, it must

regulate secondary conduct and not enshrine a substantive

value judgment. Because all procedural rules have some impact

on how rights are exercised, we no longer apply the type of

sliding scale called for by the substantial impact test, which

required courts to somehow assess the magnitude of effects on

regulated parties of a rule of agency procedure. The extent of

the impacts or burdens on primary rights does not provide the

dividing line between substantive and procedural rules,

although it may mark when a procedural rule has such extreme

effects that it is properly considered substantive.

III.

The 2019 Rule does not encode a substantive value

judgment, and it governs only secondary conduct by

establishing procedures for representation elections. The

relevant primary conduct, namely the rights protected by the

National Labor Relations Act, is employee representation for

the purpose of collective bargaining, which must be determined

in “an election by secret ballot.” See 29 U.S.C. § 159(c)(1).

These rights remain untouched by the Rule. The majority does

not contest the Rule governs secondary conduct. Rather the

majority simply applies the old standard and tries to gauge the

extent of any impacts of these procedural choices on the rights

of unions and employers.

Applying the correct standards, the critical fact for the

challenged provisions in the 2019 Rule is that they do not

change the “substantive standards” governing who wins and

who loses elections, or who is part of the bargaining unit. See

Jem Broad., 22 F.3d at 327. The majority never claims they do.

Instead, each provision changes the details of how an election

is conducted. Any substantive effect is incidental. See Bowen,

8

834 F.2d at 1047. The effects of the rule are apparently minor,

as the majority nowhere suggests that the procedures have

grave or extreme impacts. The five provisions are properly

classified as procedural, and therefore notice and comment was

not required for any of them. I address each of the rules in turn.

A.

Pre-Election Litigation Timing. Employers and unions

may disagree about which employees are part of the bargaining

unit and thus eligible to vote in any election. If such a dispute

arises, the parties may resolve it by agreement or by

adjudication in front of the Board. Under the 2014 Rule, the

election would go forward, even if a dispute were still pending.

79 Fed. Reg. at 74,482. The 2019 Rule reverses the timing:

“Disputes concerning unit scope, voter eligibility and

supervisory status will normally be litigated and resolved by

the Regional Director before an election is directed.” 84 Fed.

Reg. at 69,593. This is a classic procedural rule that favors

finality over speed and reflects no substantive value judgments.

The provision does not change whether the election will occur

or who will win, only when and how the election happens. I

agree that this is a procedural rule. Maj. Op. 37.

B.

Election Scheduling. Once a regional director orders an

election, it must be scheduled. The 2019 Rule requires that the

election be scheduled on “the earliest date practicable” but

“normally not … before the 20th business day after” an election

is directed. 84 Fed. Reg. at 69,595. The 2014 Rule, on the other

hand, required elections to be scheduled as early as practicable.

79 Fed. Reg. at 74,485. Such scheduling implicates no

substantive value judgment, but rather promotes the procedural

concern for finality, allowing the Board sufficient time to

resolve eligibility disputes in advance. As with the provision

9

concerning pre-election litigation, this provision does not

change whether the election will occur, only when. The 20-day

provision is also procedural, as the majority concludes. Maj.

Op. 41.

C.

Voter List Timing. Once an election has been directed, the

employer must provide a list of all eligible voters to the union

and the Board. This voter list contains names, job titles, and

contact information to facilitate the union’s campaign

activities. Before 2014, employers had seven days to turn over

the list. 84 Fed. Reg. at 69,527. The 2014 Rule reduced the time

to two business days. Id. The 2019 Rule provides five business

days. Id. at 69,526. The majority concludes the provision is

substantive because it “‘trenches on’ the union’s substantive

interest in campaigning on equal footing.” Maj. Op. 20. The

majority, however, applies the wrong legal standard and

therefore reaches the wrong legal conclusion.

To begin with, the rule is facially procedural because it

does not “alter the substantive criteria” by which elections are

won or lost. See Glickman, 229 F.3d at 281. Five business days

for exchanging voter lists embodies no substantive value

judgment and merely implements an established pre-election

procedure. In moving from two to five days, the Board

explained that “providing more time to produce the voter list

will reduce the potential for inaccurate lists, as well as the

litigation and additional party and Agency expenditures that

may result therefrom.”2 84 Fed. Reg. at 69,532. The rule serves

2

The majority asserts five days is unreasonable because the Board in

2014 found two days a reasonable time frame for providing the voter

lists. Maj. Op. 22. But what the Board thought reasonable at one time

cannot serve as the perennial benchmark for what is reasonable in the

future. Importantly, here the Board recognized that although

10

procedural concerns, like facilitating accurate lists, promoting

agreement, and avoiding litigation. Id. at 69,532.

When a procedural rule concerns the timeframe for

asserting substantive rights, “the proper question is whether the

time allotted is so short as to foreclose effective opportunity to

make one’s case on the merits.” Lamoille Valley, 711 F.2d at

328. An unusually short time frame could impose the type of

“extreme procedural hurdle[]” that converts a procedural rule

into a substantive one. Id. No extreme hurdle exists here.

Moving from two business days to five, in a pre-election period

that normally lasts a minimum of 20 business days, hardly

forecloses a union’s ability to campaign or imposes an extreme

procedural hurdle. Rather it is the type of “incidental

mechanical burden[] on regulated” parties that we have

classified as procedural. See Bowen, 834 F.2d at 1051.

The majority does not identify any substantive value

judgment encoded in the voter list provision. Nor does it

suggest that the rule regulates primary conduct. Instead, the

majority concludes the provision is substantive because the

union has an “interest in campaigning on equal footing” and

the voter list provision “necessarily burdens [that] interest.”

Maj. Op. 21. This analysis effectively returns to the obsolete

“substantial impacts” test, here perhaps just an “impacts” test.

See Maj. Op. 26 (expressing skepticism that three days “has de

minimis impact”) (cleaned up).

“technological changes … may permit some employers to more

quickly compile and transmit the voter list,” this was not true for all

employers and additional challenges existed for “decentralized

employers,” the “construction industry,” and “joint or multi-

employer arrangements.” 84 Fed. Reg. at 69,531–32. In light of that

finding, the Board could reasonably adjust the timeline for providing

voter lists.

11

On the majority’s reasoning, election rules will rarely be

procedural, and the Board has been acting improperly for

decades.3 The reality, of course, is that every election rule will

have some impact on the parties to an election. The majority’s

reasoning is precisely that the burden, which looks a lot like a

“substantial impact,” makes the rule substantive. This runs

contrary to this court’s repeated recognition that all procedural

rules place some burden on regulated parties and therefore that

such burden alone does not make a rule substantive. See, e.g.,

Glickman, 229 F.3d at 281 (“[A]n otherwise-procedural rule

does not become a substantive one, for notice-and-comment

purposes, simply because it imposes a burden on regulated

parties.”).

Two days is reasonable to wait for a voter list, but not

five—what about three or four days? Judicial parsing of an

agency’s procedural choices has never been the standard for

drawing a line between substantive and procedural rules. Under

our precedents, in the absence of some showing that the five-

day timeline effectively forecloses the union’s rights, simply

stating that the rule imposes some burdens does not make it a

substantive rule.

D.

Certification Timing. The regional directors “shall certify

the results” of representation elections. 29 U.S.C. § 159(c)(1);

3

The majority also emphasizes the voter list “facilitates the

transmission of information between parties,” not just between one

party and the Board. Maj. Op. 23. But a procedure governing conduct

between parties with respect to an election supervised by the Board

can be a procedural rule under section 553(b)(A), and I am aware of

no case in which we have held that a rule of procedure becomes

“substantive” simply because it governed the procedure between

parties to an agency proceeding.

12

see also id. § 153(b). Under the 2014 Rule, certification

proceeded regardless of whether a request for review of the

election was pending before the Board. 79 Fed. Reg. at 74,487.

Under the 2019 Rule, a regional director may certify election

results only after Board review is complete. 84 Fed. Reg. at

69,526. Like the other provisions, the timing for certification

governs the procedures of elections. It does not affect who wins

or loses an election, and it does not change the substantive

criteria for representation. See Glickman, 229 F.3d at 281.

Delaying certification until Board review is complete may

affect the right to bargain because certification is the moment

from which substantive legal rights attach. See 29 U.S.C.

§ 158(a)(5). The majority considers this “effect … on the right

to collective bargaining” sufficient to make the certification

timing a substantive rule. Maj. Op. 29 (discussing the Rule’s

“direct impact”). This again misstates the relevant standards,

because we do not consider the “effect” or “direct impact” of

procedural requirements to gauge whether they are a

substantive regulation. Choosing to delay certification does not

reflect a substantive value judgment. When the “timetable for

asserting substantive rights” is at issue, “the proper question is

whether the time allotted is so short as to foreclose effective

opportunity to make one’s case on the merits.” Lamoille Valley,

711 F.2d at 328. Or put another way, agencies are allowed to

“establish a terminal point” in procedural rules, even if the

timing of substantive rights are affected. See JEM Broad., 22

F.3d at 326. Only when a procedural timeline is “sufficiently

grave” does it become a substantive rule.

The certification timing rule simply requires the regional

director to wait for Board review before certifying the results

of an election. The rule does not change whether certification

will occur or whether employees will be represented. Instead,

it sequences the Board and regional director’s actions to

13

promote certainty and finality and avoid unnecessary litigation.

The majority does not suggest the timeline here would have any

grave impacts, perhaps because in practice the additional delay

from the 2019 Rule ranges from minimal to nonexistent. To

challenge an election in court, the employer must “refuse to

bargain with the union certified by the Board” and wait for “an

unfair labor practice complaint” to be filed. Physicians Nat’l

House Staff Ass’n v. Fanning, 642 F.2d 492, 495 (D.C. Cir.

1980) (en banc). Yet, if the election is complete, the employer

has a legal obligation to bargain. To mitigate this catch-22,

regional directors “generally hold refusal-to-bargain charges in

abeyance” pending an employer’s challenge to the election.4 84

Fed. Reg. at 69,555. As a practical matter, this means the legal

rights flowing from certification, namely rights to collective

bargaining, are usually stayed, which for all intents and

purposes is the same as staying certification. The 2019 Rule

delays certification until after Board review, which has the

same results as the 2014 Rule, but without “needless

litigation.” Id.

Numerous decisions of this circuit have recognized that

rules adjusting the timing for exercising substantive rights are

procedural. For instance, in Public Citizen, we addressed a

State Department policy against searching for any FOIA

documents produced after the date of the request. 276 F.3d at

637. The FOIA policy affected what documents would be

produced. See id. We nonetheless found the so-called “cut-off

policy” encoded “no substantive value judgment” because it

applied equally to all FOIA requests. Id. at 641 (cleaned up).

Therefore, we concluded the policy was a “prototypical

4

The majority labels the practice of staying refusal-to-bargain

charges as “underenforcement.” Maj. Op. 27. But a stay is not

underenforcement, just delayed enforcement, which is why this

provision is procedural.

14

procedural rule properly promulgated without notice and

comment.” Id. Similarly, in Lamoille Valley, a rule shortened

the timeline for railroads to respond to a proposed merger from

90 days to 60 days. 711 F.2d at 327. Because it was a

procedural schedule that did not foreclose the effective

opportunity to win on the merits, we upheld it as a procedural

rule. Id. at 328. Finally, in JEM Broadcasting, we found a rule

establishing a “fixed filing period” of 30 days for FM station

license applications, with no opportunity to correct, was a

“straightforward” procedural rule. 22 F.3d at 322, 326.

Although the rule could be “described as affecting substance”

and might even be “harsh” in some cases, it did not change the

“substantive standards by which the FCC evaluate[d] license

applications.” Id. at 326–27 (cleaned up). This was fatal to the

claim that the rule was substantive. The court concluded that

establishing a cut-off date was part of a necessary and

reasonable procedural rule. Id. at 327.

The majority fails to distinguish these cases. It makes a

puzzling suggestion that there is a material difference between

“asserting” and “exercising” substantive rights, such that the

timing for asserting rights is procedural, but the timing for

exercising rights is substantive. Maj. Op. 27–28. Yet the

assertion and exercise of rights is invariably linked, and so it is

unsurprising that the majority’s distinction finds no support in

the APA and has been rejected by our caselaw.

The majority’s approach—labeling some rights

substantive and important and others less so—will result in

uncertainty and produces contradictory results even in this

case. Delayed certification is supposedly substantive because it

“directly alters an employer’s legal duty and its employees’

associated substantive right.” Maj. Op. 40. On this reasoning,

the rule that postpones an election for some 20 days would also

be substantive because it necessarily postpones certification

15

and the attachment of the employer’s legal duty. Yet the

majority properly classifies the 20-day rule as procedural.

Because both rules have some effects or impacts on the parties’

rights, the majority’s different treatment amounts to finding

one provision has more substantial effects than the other, in

contravention of our caselaw.

Most timelines for regulatory procedure have some impact

on substantive rights, but without a showing that the timeline

egregiously undermines those rights, we have accepted them as

an ordinary and essential aspect of agency procedures. Like the

20-day rule, the certification timing provision is a reasonable

procedural choice and notice and comment was not necessary.

E.

Election Observer Qualifications. From its earliest days,

the Board has allowed parties to have observers at elections as

a “courtesy” or “privilege.” 84 Fed. Reg. at 69,551. The Board

has held it is not an abuse of discretion to revoke this courtesy.

Id. Although the Board generally lets the parties select their

own observers, that practice is subject to limitations imposed

by the regional directors or the Board. To make this process

more transparent and efficient, the 2019 Rule provides that

“whenever possible, a party shall select a current member of

the voting unit as its observer, and when no such individual is

available, a party should select a current nonsupervisory

employee as its observer.” Id. at 69,552.

This is a typical procedural rule. It streamlines a

discretionary process the Board has created to improve the

administration of elections. A rule is properly classified as

procedural if it addresses secondary conduct. The procedural

exception “covers agency actions that do not themselves alter

the rights or interests of parties, although it may alter the

manner in which the parties present themselves.” See JEM

16

Broad., 22 F.3d at 326 (quoting Batterton v. Marshall, 648 F.2d

694, 707 (D.C. Cir. 1980)). The “rights or interests of parties”

in this context means primary rights and interests, not an

interest in a particular kind of procedure. See id. at 328.

Because the election observer provision does not alter the

scope of representation, it does not impose a new “substantive

burden.” Maj. Op. 33 (cleaned up).

The majority cannot label the election observer rule as

substantive because the rule does not encode a substantive

value judgment. The Board’s judgment, to allow non-Board

observers, is a procedural one. The wholly discretionary

practice of allowing election observers helps “assure the parties

and the employees that the election is being conducted fairly”

and avoids the appearance of “partiality on the part of the

Board.” 84 Fed. Reg. at 69,551. The point is transparency in an

election procedure under the control of the Board. This is not a

“substantive value judgment” within the meaning of our cases.

All actions are necessarily “based on the value judgment that

the chosen option is better, in some relevant way.” Glickman,

229 F.3d at 282. When that value judgment goes to procedural

values, like ensuring agency operations are accurate,

transparent, and efficient, the rule is properly procedural. See

JEM Broad., 22 F.3d at 328.

The majority also misidentifies the relevant substantive

interest. The parties have no interest in election observers for

their own sake. Observation is just one procedure that helps

protect the right to collective bargaining. See 29 U.S.C.

§ 159(a). Such procedures are ordinarily not substantive, even

though they may impact substantive rights. For instance, we

have held that a rule requiring audits be performed by

nonagency accountants was procedural because the substantive

requirement of an audit was unchanged—the rule affected only

the question of how to “satisfy the audit requirement.”

17

Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins.

Corp., 589 F.2d 658, 665 (D.C. Cir. 1978) (cleaned up). Here,

an election observer is like an auditor. A party might want a

particular observer, but only because the observer helps it

assert a substantive interest, not because the choice of observer

changes that substantive interest.

The majority does not identify what effects the election

observer rule will have on the outcome of elections. In fact, it

is hard to imagine it will have any. The mere fact that the rule

may have some impact on elections does not suffice to turn a

facially procedural rule into a substantive one. Nor does the

majority find, as it must, that the effects here are “sufficiently

grave.” See Lamoille Valley 711 F.2d at 328. The election

observer rule is procedural and should be upheld.

* * *

The 2019 Rule does not change the scope of collective

bargaining or the standards by which those rights are reviewed;

rather, it adjusts schedules, timelines, and monitoring

mechanisms. Like all procedural rules, the challenged

provisions may affect how parties exercise their rights, but

nothing here imposes the type of extreme procedural hurdle

that converts a facially procedural rule into a substantive one.

Under this circuit’s precedents, each of the provisions is

properly classified as a procedural rule and therefore was

permissibly promulgated without notice and comment.

IV.

Before 2014, when a party sought review within 14 days

of the direction of an election, all ballots were impounded and

remained unopened pending review. 84 Fed. Reg. at 69,547.

The 2014 Rule eliminated the impoundment provision. The

2019 Rule charts a middle course. Now if a party files for

18

review within ten days of the direction of an election, disputed

ballots are segregated and impounded pending a decision of the

Board. A request for review may be filed later than ten days,

but ballots are not impounded. Id. at 69,526.

The parties agree the impoundment provision is

procedural. The AFL-CIO argues it should be set aside on two

grounds: (1) The provision is arbitrary and capricious because

ballots are automatically impounded, even when review might

be rendered moot by the election results; and (2) the provision

is contrary to 29 U.S.C. § 153(b). The majority vacates the

provision as contrary to law, but I would uphold it as consistent

with the statute and reasonably explained.

A.

Section 153(b) allows the Board to delegate its power to

direct and certify elections, except that “the Board may review

any action of a regional director.” 29 U.S.C. § 153(b). But

“such a review shall not, unless specifically ordered by the

Board, operate as a stay of any action taken by the regional

director.” Id. (emphasis added). To determine whether the

impoundment provision is consistent with section 153(b)

requires a two-part inquiry. First, is impoundment a stay? If

not, there is no section 153(b) violation. Second, if

impoundment is a stay, was it specifically ordered by the

Board? If it was so ordered, there is no section 153(b) violation.

The impoundment provision is clearly a stay, as the

majority agrees. “Stay” is defined as the “[t]he postponement

or halting of a proceeding, judgment, or the like.” BLACK’S

LAW DICTIONARY 1639 (10th ed. 2014). Impoundment, the

Board admits, “postpones” the tallying of ballots. 84 Fed. Reg.

at 69,548. Counting ballots is an “action” a regional director

may take as part of his delegated authority to “direct an

election” and “certify the results thereof.” 29 U.S.C. § 153(b).

19

Therefore, counting is a statutory “action” of the director, and

impoundment stays that action.5

The plain language of the statute is reinforced by the

impoundment provision in the 2019 Rule:

The filing of such a request shall not, unless

otherwise ordered by the Board, operate as a stay

of the election …, except that if a request for

review of a decision and direction of election is

filed within 10 business days …, ballots whose

validity might be affected by the Board’s ruling

… shall be impounded and remain unopened

pending such ruling or decision.

29 C.F.R. § 102.67(c) (emphasis added); see also id.

§ 102.67(h) (“The grant of a request for review shall not,

outside [29 C.F.R. § 102.67(c)], stay the Regional Director’s

action.”) (emphasis added). Because impoundment is an

exception to the rule that review does not operate as a stay, the

Rule clearly specifies that impoundment will act as a stay.

Next, we must consider whether the impoundment

provision in the 2019 Rule was “specifically ordered by the

5

The Board argues that “taken” can mean actions in the past, present,

or future because “taken” is a participial adjective modifying the

noun “action.” In isolation, a past participle has no temporal

limitation and may refer, as the Board suggests, to past, present, or

future action. When, however, a participle is postpositive, i.e.,

appearing after the noun, it is timeless. In section 153(b), context and

placement of the participle clarify its temporal reach. The participle

“taken” appears after the noun it modifies: “any action taken by the

regional director.” That means it applies to past, present, and future

actions. Because impoundment is an “action taken” by the director,

it fits within section 153(b).

20

Board.” 29 U.S.C. § 153(b). By promulgating a rule that

provides conditions for when the impoundment will occur, the

Board has specifically ordered a stay. The Board has discretion

to delegate its power to direct and certify elections, and it

retains the authority to review or withdraw that delegated

power. While section 153(b) ensures that review by the Board

will not operate as an implicit stay, the Board may stay the

actions of a regional director at will. Nothing in the statute

forecloses the Board from enacting a rule that establishes

prospective criteria for when the actions will be stayed. Indeed,

such rulemaking has the advantage of providing notice and

predictability to parties. The impoundment provision was a

specific order to issue stays in certain conditions.

The majority maintains that a stay may be ordered only “in

a particular case.” Maj. Op. 46. Of course, the Board may order

a stay in a particular case, but nothing in section 153(b)

precludes the Board from ordering a stay through rulemaking.

Section 153(b) simply states: “such a review shall not, unless

specifically ordered by the Board, operate as a stay.” The

clause “unless specifically ordered by the Board” is not

explicitly limited to reviews in a particular case, and so the

Board may order a stay in a particular case, or it may issue an

order through prospective rules. Section 153(b) does not

constrain the Board’s choice.

The impoundment provision of the 2019 Rule is a stay

specifically ordered by the Board and therefore is consistent

with section 153(b).

B.

As I conclude the impoundment provision is consistent

with the statute, I must address the AFL-CIO’s argument that

the provision is arbitrary and capricious because it creates

uncertainty in the time between election and certification and

21

forces the Board to decide issues that may be moot. Under

arbitrary and capricious review we consider whether the

agency’s decision is “reasonable and reasonably explained.”

FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158

(2021). The court should not substitute its policy judgments for

that of the agency. Instead, we ask whether the agency has

“considered the relevant issues” and adequately “explained the

decision.” Id. Here, we must recognize that “control of the

election proceeding, and the determination of the steps

necessary to conduct that election fairly were matters which

Congress entrusted to the Board alone.” NLRB v. Waterman

S.S. Corp., 309 U.S. 206, 226 (1940).

In the 2019 Rule, the Board explained the impoundment

provision will promote finality and certainty by preventing an

immediate tally of the ballots from being invalidated after

Board review. 84 Fed. Reg. at 69,548. It also noted a general

rule will promote transparency and uniformity because all

requests for review within ten days will stay the election

pending review. Id. Finally, the Board noted that impoundment

promotes ballot secrecy by hiding the sentiments of employees

whose votes might be nullified upon future review. Id. These

reasons comport with the Board’s responsibility for ensuring

the efficient administration of fair elections and were

reasonably explained.

The AFL-CIO’s concern—that the Board will conduct

reviews that will be rendered moot by the election—was

addressed by the Board. The Board recognized that

impoundment comes with some cost to “promptness and

efficiency,” but concluded such concerns were outweighed by

the gains in finality, transparency, uniformity, and secrecy. 84

Fed. Reg. at 69,548. It was reasonable to conclude these gains

also outweighed any concerns that employers would be unsure

how to act after an election, but before results are tallied. With

22

the 2014 Rule, that uncertainty simply existed at a different

time: after certification, but before the end of the review

process. Id. at 69,555 (“[W]here a certification issues

notwithstanding the (potential) pendency of a request for

review that may nullify the certification, the possibility for

confusion is greatly amplified.”).

The AFL-CIO may prefer a different procedure, but that

does not render the Board’s judgment unreasonable. These

procedural judgments are well within the Board’s statutory

authority to manage elections. Therefore, the impoundment

provision is not arbitrary or capricious.

* * *

I concur in the judgment with respect to our jurisdiction

and the holding that the Board’s 2019 Rule is not arbitrary and

capricious. I part ways with the majority because I would hold

the Rule’s impoundment provision is consistent with law and

reasonably explained and that all five challenged provisions of

the 2019 Rule are procedural.

The administrative law distinctions relevant to

determining whether the Rule survives challenge are

admittedly in the weeds. The APA requires notice and

comment for substantive rules, but explicitly exempts

procedural rules from these requirements. Drawing the proper

line between procedural and substantive rules has important

consequences, both to ensure that courts do not layer additional

requirements on an agency’s procedural rules and also to

ensure that agencies follow the requirements of notice and

comment when imposing substantive value judgments against

regulated parties. The majority distinguishes substantive from

procedural rules by analyzing the extent of the burden on

regulated parties—but such weighing of impacts is not what the

APA requires and has been decisively rejected by this court.

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The majority emphasizes the importance of the Board’s

election procedures to collective bargaining rights. It is true

that agency procedures are often consequential and impact

parties’ rights. Nonetheless, our cases maintain that only rules

regulating primary conduct or those with particularly grave

effects are substantive, and the rules here are neither.

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.