Friday, December 13, 2019

NLRB Reverses 2014 Election Rules Without Formal Rulemaking

This morning, the NLRB released new election rules. There seems to be a major administrative law issue here because the NLRB didn’t engage in formal notice-and-comment rulemaking. They defended that approach in their rule, but I’m not sure they’re able to change a rule that was promulgated via notice-and-comment without going through the same procedure. To be clear, I really mean that I’m not sure—but some quick check-ins with folks who know more administrative law than me makes me think that I’m right on this. But we’ll have to see. I’ll note that this is a double-edged sword. If the NLRB is successful here, then a future Board can change them back again without notice-and-comment. This also highlights some hypocrisy, as opponents of the 2014 rules and their predecessor made numerous criticisms based on process, including that the notice-and-comment rulemaking that occurred wasn’t enough. Those criticisms ring hollow now.

As a reminder, in 2014, the NLRB promulgated several changes to its representation election procedures, which we’ve described before (e.g., here and here and here) and I explored in my article, NLRB Elections: Ambush or Anticlimax? My conclusion in that article was that most of the changes were modest, sensible updates to the NLRB’s election process that would provide somewhat faster elections and probably wouldn’t change the outcomes much, if at all. Much to my surprise, my prediction was spot on. The union win rate has been essentially unchanged. Moreover, the time it takes from an election petition to the election itself when down a modest two weeks or so (about 37 days to 22.5 days) in uncontested elections and down about three weeks in contested elections (about 59 days to 35.5 days). Similar modest reductions occurred for certification. Moreover, the new rules reduced elections with major (more than 100 day) delays to about only 10% of all cases.

Despite the modest impact of the 2014 election rules, reversing them has remained a goal of many employer groups and the Trump NLRB, which has been telegraphing its intent to revisit them. Today, they’ve done it, largely in rolling back the 2014 rules to the pre-2014 framework. A quick run-down of the major changes, based on a quick look at the new rules:

  • The deadline for pre-election hearings go from 8 calendar days after an election petition is filed to 14 businessdays, with the possibility of an extension of time.
  • The deadline for employers to post election notices goes from 2 business days to 5 business days.
  • Non-petitioning parties' (that is, employers in new elections ad unions in decertification elections) statements of petitions goes from around 7 calendar days to 8 business days after the region issues a notice of a hearing.
  • The regions now must generally address questions regarding eligible votes and bargaining unit determinations in a pre-election hearing, rather than a post-election hearing under the 2014 rules. This is a change that, in some cases, will have more impact than it may appear at first blush, as it gives the non-petitioning party incentive to raise these issues early—even if the argument is weak—simply to add delay.
  • Parties’ again have right to file post-hearing (and pre-election) briefs, which was eliminated as a matter of right in 2014. The briefs are due no less than 5 business days after a hearing and can be extended to 10 business days.
  • Regions are now told to normally schedule elections no earlier than 20 business days after election order ("direction of election"), unless parties’ consent to a faster timetable. This is another particularly impactful change.
  • Unlike under the 2014 rules, the Region will not automatically impound contested ballots until issues are resolved.
  • The deadline for exclesior lists (list of voting employees' contact info that employers must give to unions) goes from 2 business days to 5 business days.
  • Regions are not to certify election results if there is a pending request for review. This is another change that will allow non-petitioning parties to create signification delays.

This is one of those labor law issues where it looks like one side cares more about a “win” than any real impact. As we’ve seen, the union win rate in elections haven’t really changed under the 2014 rules, which is the ultimate result that parties care about most. So, much of this move seems to be checking off a goal of employer-side interests who objected to the 2014 rules. That said, increasing delay itself is a benefit to non-petitioning parties (which are usually employers, but can be unions), in that it allows more time before the potential of a disfavored outcome. Indeed, in her dissent, Member McFerran states that these changes means that the quickest an election can be certified moves from 28 days after an election order to 78 days. And that represents the real impact of these rules. Remember: the NLRA’s explicitly stated policy is to promote employees’ ability to freely choose collective representation. Delaying their ability to do so for no apparently good reason conflicts with that policy.

Jeff Hirsch

https://lawprofessors.typepad.com/laborprof_blog/2019/12/nlrb-reverses-2014-election-rules-without-formal-rulemaking.html

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