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Union Elections Slower, More Complex Under NLRB Changes (1)

Dec. 13, 2019, 1:55 PMUpdated: Dec. 13, 2019, 4:24 PM

The National Labor Relations Board modified its procedures for union elections, extending deadlines and adding steps to a process that had been shortened and streamlined during the Obama administration.

The NLRB announced Dec. 13 more than a dozen changes to its election procedures. The amendments call for suspending a union election to resolve disputes over whether the bargaining unit is appropriate, and holding off on certifying a union victory while an employer’s request to challenge the win is pending.

The board said it issued the changes through a final rule—without going through the full rulemaking process—"pursuant to its authority to change its own representation case procedures.”

The board’s move to issue the changes without formal rulemaking reflects the employer community’s longstanding frustration with the NLRB’s 2014 changes to election procedures, which business advocates have decried as the “quickie” or “ambush” election rule.

Critics of the 2014 changes say they deprive employers of the time needed to educate their employees about the drawbacks of unionizing. NLRB data and a Bloomberg Law analysis, however, have shown that those amendments had a negligible effect on unions’ win rates in elections.

Other NLRB efforts to change its election framework include a pending rulemaking on three different rules, including reshaping its “blocking charge” policy to prevent unions from stopping decertification votes by accusing employers of election interference. A Bloomberg Law analysis showed that the board relied in part on flawed data to support its proposed blocking charge changes.

The NLRB’s regulatory agenda says the agency also plans to roll out another tranche of amendments to its election procedures in January.

‘Common Sense Changes’

The modifications to election procedures announced Dec. 13 will be effective 120 days after the final rule is published in the Federal Register, which is expected on Dec. 18, the NLRB said.

The NLRB characterized its election procedure changes as clarifications to allow for litigation and resolution of the scope of a bargaining unit and voter eligibility issues. The amendments also provide additional time to comply with pre-election requirements from the 2014 amendments, the board said.

“These are common sense changes to ensure expeditious elections that are fair and efficient,” Chairman John Ring (R) said in a statement. “The new procedures will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.”

Currently, disputes over bargaining unit composition and voter eligibility don’t have to be litigated before a union election, but the changes call for a halt of a vote until those issues are resolved. The amendments also would suspend certification of a union win if an employer request for review is pending—or during the period where such request is possible.

Parties regain their ability to file briefs after pre- and post-election hearings under the board’s amendments.

Several changes focus on stretching out the election process. All time periods that apply to election rules will be calculated in business days, the NLRB said, whereas they’re now sometimes in calendar days.

For example, the modifications call for extending the scheduling of a pre-election hearing date from eight calendar days to 14 business days after the notice of the hearing. Similarly, an employer would have five business days to post notices that an election had been requested, up from two business days in the current rule.

Also under the changes, the minimum period from the filing of an election petition to certification of a union in a case that’s contested both pre- and post-election will jump from 23 days to 78 days, according to Democratic member Lauren McFerran, who dissented.

“With this rule, my colleagues claim the dubious distinction of becoming the first Board in the agency’s 84-year history to intentionally codify substantial delay in the representation case process, to the detriment of the mission of our Agency,” McFerran said.

Rulemaking Procedure

Although the NLRB went through notice-and-comment rulemaking for its 2014 changes, it’s not necessary to use that formal process because the board is amending procedure, the board’s Republican majority said.

The board has amended its representation procedures more than three dozen times without using notice-and-comment rulemaking, the majority noted.

Agencies must withdraw direct final rules issued under the “good cause” exemption to rulemaking requirements if they receive an adverse comment, according to a 2019 Congressional Research Service report. But the exemption for changing procedural rules doesn’t include that step.

The NLRB’s move to change parts of its election framework without providing notice and taking public comment could be subject to a legal challenge, said Jeffrey Lubbers, an administrative law professor at American University.

“It’s probably legal for the board to do this based on the procedural exemption,” Lubbers said. “But given that the board has acknowledged how controversial the rule is, it’s unfortunate they haven’t sought public comment on it.”

In her dissent, McFerran argued that the final rule is arbitrary and capricious in violation of the Administrative Procedure Act because the majority made “radical changes” to the election procedures without any factual basis.

The majority said precedent from the U.S. Court of Appeals for the District of Columbia Circuit permits it to make those changes based on “non-statistical policy choices.”

(Updated with additional reporting throughout.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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