NLRB Extends Rule’s Comment Period After Data Questioned (1)

Dec. 5, 2019, 9:25 PMUpdated: Dec. 5, 2019, 9:57 PM

The National Labor Relations Board again extended the deadline for public comments on its proposed changes to rules that govern the elections process when workers want to form a union or oust an existing one.

The second extension—which moves the comment period deadline to Jan. 9, with responses to initial comments due Jan. 23—was announced hours after publication of a Bloomberg Law analysis showing errors in data the board’s Republican majority relied on to justify a portion of its rulemaking. That part of the larger proposal would undo a policy that requires NLRB officials to pause union elections if a charge is filed alleging interference in the elections process.

Agency spokesman Edwin Egee said the timing of the Bloomberg Law report and the board’s press release announcing the comment period extension is coincidental. He said the board decided on the extension during a meeting Dec. 4. Bloomberg Law first questioned the NLRB in mid-October about the data used in its proposal.

The board’s lone Democrat, Lauren McFerran, dissented from the proposed rule. McFerran pointed out examples of the same type of apparent errors Bloomberg Law’s analysis identified, and suggested the discrepancies “will inevitably result in a final rule that is arbitrary and legally deficient.”

The NLRB’s Republican majority—Chairman John Ring and members William Emanuel and Marvin Kaplan—argue current policies cause unnecessary delay and create barriers to employees’ free choice to unionize or oust an incumbent union.

Some administrative law scholars told Bloomberg Law the board can likely amend its Notice of Proposed Rulemaking to address issues with the data, thereby decreasing the chances of the rule being invalidated through a legal challenge. The longer comment period will also afford the agency more time to address any issues with its data, if the Republican members decide to do so.

The NLRB’s proposed process would allow for voting to proceed in elections where charges of election interference have been filed, but ballots would be impounded until the board investigates and resolves the allegations. Vote-counting would start immediately if the board determines there was no illegal interference; the union and workers can choose to hold a new election if the allegation is substantiated.

The comment period was previously supposed to end Dec. 10.

—With assistance from Alex Ebert.

(Updated with additional comment from an NLRB spokesman.)

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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