By Michael C. Duff, Center for Progressive Reform
For decades, commentators have complained about how long it can take for workers attempting to unionize to simply get an election in which workers make an up-or-down decision on whether to form a union. For many years, employers were able to raise hyper-formalistic legal arguments that took so long to resolve that the employees initially interested in forming a union had often moved on to other employment. In far too many cases, employers also unlawfully coerce workers during the delay, and those workers eventually withdraw their support for the union.
After much internal political wrangling, the National Labor Relations Board (NLRB) enacted a series of new election procedures in 2014 meant to accomplish a simple objective: to get interested employees to a union election first and then (if necessary) address the typical mountain of anti-worker legal challenges. Prior to the changes, many of these challenges were adjudicated pre-election in time-consuming administrative proceedings in which employers were represented by lawyers, but unions were not. Illustrative examples of such challenges include whether specific workers are “supervisors” ineligible for membership in the proposed union rather than an eligible employee, as well as the precise scope of the “bargaining unit” – that is, whether it is a logical grouping of employees for collective bargaining purposes. Particularly exasperating – as this writer knows from his prior first-hand experience as an NLRB hearing officer – were arcane issues surfacing for the first time.
The new election rules were published in the Federal Register in December 2014 and became effective in April 2015. The NLRB adopted the final rule after considering thousands of public comments, at all times treating the rule as being subject to notice-and-comment procedures. But after Donald Trump took office, the Board published a “Request for Information” (RFI) in December 2017 seeking “information” that implicitly questioned the continuing need for, and efficacy of, a rule that was little more than two years old. Subsequent litigation by the AFL-CIO suggested that the RFI yielded uncompelling results.
Nevertheless, on December 13, 2019, the NLRB reversed many of the Obama-era union election changes without taking or considering public comments. A summary of the Board’s modifications can be found here. Citing “the Board’s clear regulatory authority to change its own representation case procedures” and its “longstanding practice of evaluating and improving its representation case procedures,” NLRB Chair John Ring argued, “These are common sense changes to ensure expeditious elections that are fair and efficient . . . The new procedures will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.”
On March 6, 2020, the AFL-CIO challenged the NLRB’s implementation of the “new” election rule on the grounds that it did not comply with the procedural requirements of the Administrative Procedure Act (APA), was arbitrary and capricious in whole and in part under the APA, and was inconsistent with the National Labor Relations Act.
On May 30, federal district court Judge Ketanji Brown Jackson set aside most of the Board’s rule (a small portion was remanded), saying, “The Court [in addition to finding that it has jurisdiction] further finds that the challenged portions of the regulation at issue are not procedural rules that are exempted from the notice and-comment rulemaking requirements of the APA, see 5 U.S.C. § 553(b)(3)(A), and because each of these specific provisions was promulgated without notice-and-comment rulemaking, each one must be held unlawful and set aside . . .”
The irony of the case is that, after years of being chided (usually from the Right) that it should more frequently use rulemaking (as opposed to the adjudicatory process through which it typically changed policy course), the NLRB has managed to politicize the fundamentals of Administrative Law 101 by framing as “merely procedural” one of the most impactful and contentious areas in all of labor law: how quickly workers can get to a union election.
The Board has already stated that it intends to appeal Jackson’s decision.