Labor & Employment Law Daily AFL-CIO mounts legal challenge to NLRB election rule
Thursday, March 12, 2020

AFL-CIO mounts legal challenge to NLRB election rule

By Lisa Milam, J.D.

The federation has filed suit contending that the Board’s latest election rule revamp violated the Administrative Procedures Act.

In a complaint filed Friday, March 6, the AFL-CIO takes aim at the NLRB’s latest representation election rule changes, saying that the Board violated the Administrative Procedures Act on numerous counts in issuing them. The labor federation seeks a declaratory judgment to that effect, and injunctive relief barring the Board from implementing the rule changes as scheduled on April 16, 2020.

On December 18, 2019, the NLRB issued a direct final rule amending its representation election procedures. The Board did not rescind the controversial 2014 “quickie election” rule changes enacted by the Obama administration, but it revised a number of its specific provisions. The AFL-CIO contends, however, that the Trump NLRB “largely repealed” the labor-friendly Obama-era rule. The Republican-controlled NLRB has also signaled that it will continue to revise Board election procedures in piecemeal fashion, with additional rulemaking in the near future.

Yet, in issuing the 2019 rule (showing continued enthusiasm for rulemaking to effectuate labor policy, rather than its traditional reliance primarily on case adjudication) the NLRB did not engage in standard notice-and-comment rulemaking. Rather, it issued a direct final rule, saying its regulatory action was merely procedural, a function of the “ongoing process of continually evaluating and improving its procedures to better effectuate the purposes of the Act.”

APA violations. The AFL-CIO’s suit claims that the NLRB violated the APA in several ways:

1. The agency failed to submit to standard notice and comment rulemaking (although it had issued a formal Request for Information in late 2017 and received nearly 7,000 submissions in response, the Board expressly stated in its 2019 rule preamble that the latest provisions would have been enacted regardless of the RFI, and were not made pursuant to the responses received);
2. The regulatory action as a whole was arbitrary and capricious;
3. Specific substantive provisions are arbitrary and capricious;
4. The rule violates the APA in that it is inconsistent with the NLRA.

The AFL-CIO challenges the notion that the rule change is merely procedural, arguing instead that “[t]he central parts of the 2019 election rule are not procedural rules as defined in the APA,” and also that “all other parts of the 2019 election rule are not severable from those central, substantive parts.” The complaint continues: “The 2019 election rule makes significant changes to the substantive rights of employees, labor organizations, and employers, inter alia, creating additional barriers confronting a party seeking an election supervised by the NLRB; creating a right to an advisory opinion from a regional director on the status of individual employees prior to an election; extending the campaign period prior to such elections; delaying the provision of a list of eligible voters in such elections; limiting which parties can be designated as observers in such elections; and delaying the counting of ballots, the certification of results, and thus the obligation of employers to bargain collectively with their employees’ chosen representative.”

Moreover, according to the complaint, in issuing the rule, the Board ignored data and other key information at its disposal pursuant to its own RFI “that contradicts assertions in the Board’s rationale for the rule and would otherwise have informed the rulemaking process.” The Board relied on comments made by dissenters from the Obama-rule, who predicted dire outcomes that did not come to fruition. Indeed, the AFL-CIO argued that in promulgating the 2019 rule, “the Board relied on stale assertions about the expected consequences of adopting the 2014 election rule that were illogical when made and have proven to be demonstrably false.” Backing up this contention were the Board’s own regional directors, the complaint asserts; in their own response to the 2017 RFI, the agency officials most responsible for overseeing Board elections stated that “While parties initially voiced great concerns about the 2014 Election Rule, to all the parties’ credit, after the initial learning curve, there have been very few difficulties in the adoption of the rules.”

The AFL-CIO’s complaint also challenges a number of specific substantive provisions, arguing that several of the rule provisions are counter to the express terms of the NLRA.

Harm to AFL-CIO. Had it been afforded the opportunity to comment on the 2019 rule, the AFL-CIO asserts, it would have done so. And, should the 2019 rule change take effect as scheduled, it will be more difficult for the federation’s unions to obtain representation elections. The rule “will delay those elections, will prejudice unions’ ability to campaign in those elections, will delay the counting of ballots after those elections, and will delay the certification of unions as the representative of employees and, in so doing, will delay employers’ legal duty to bargain when a majority of employees chooses a representative to engage in bargaining in those elections.

“The 2019 election rule will have an irreparable and incalculable adverse impact on AFL-CIO unions’ ability to obtain the right to represent employees and on subsequent collective bargaining on behalf of those employees. The AFL-CIO unions and their locals would have standing to challenge the rule in their own right.”

Prayer for relief. The AFL-CIO has asked the court to declare that the NLRB’s 2019 election rule arbitrary, capricious, and an abuse of discretion in violation of the APA; and that the rule itself violates the NLRA and thus the APA. It seeks an order vacating and setting aside the 2019 rule and enjoining its implementation.

The AFL-CIO’s complaint, No. 20-cv-00675, has been filed in the U.S. District Court for the District of Columbia.

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