Employment Law Daily NLRB ‘quickie election’ rules may be headed back to the drawing board
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Thursday, December 14, 2017

NLRB ‘quickie election’ rules may be headed back to the drawing board

By Pamela Wolf, J.D.

In a move not terribly surprising for labor scene watchers, the National Labor Relations Board is proceeding with a Request for Information (RFI) seeking public input on its controversial 2014 Election Rule, which modified the representation-election procedures located at 29 CFR parts 101 and 102, the Board has announced. Dubbed by opponents as the “quickie election” and “ambush election” rule, the 2014 rulemaking set off tides of impassioned criticism, congressional hearings, proposed legislation, and litigation.

With the change from the Obama Administration to the Trump Administration and a Republican-majority, pro-business Board now in place, the information request (as approved by Board, including two dissenters) will likely put the Board’s election rules back on the drawing board. Notably, the Trump White House has made its commitment to regulatory rollback well known. The Board majority, however, maintains, at least publicly, that this is not the impetus behind the RFI.

Revised representation election rule. The Obama Administration’s NLRB approved the revised rule by a 3-2 ballot in December 2014. The Board said at that time that the rule would enable the agency to more effectively administer the NLRA by modernizing its rules in light of modern technology, making its procedures more transparent and uniform across regions, and eliminating unnecessary litigation and delay. The Board stated that it would “be better able to fulfill its duty to protect employees’ rights by fairly, efficiently, and expeditiously resolving questions of representation.” The Board also provided a comparison table of current and new case procedures.

Beleaguered past. The proposed rule was published in the Federal Register on Thursday, February 6, 2014. According to the Board’s comments, the proposed version was substantively identical to its prior proposal from June 22, 2011, which the Board rescinded after being forced to retreat from its appeal of a district court decision invalidating the much fought-over revisions due to a quorum issue. Under a stipulation of voluntary dismissal, the agency’s appeal was dismissed by the D.C. Circuit on December 9, 2013.

Back to the drawing board again. Citing its justification (at least in part) for the new information request that will likely place the election rule back on the drawing board, the majority of Trump Administration’s NLRB noted that the final rule has been in effect for more than two years, and the current five-member Board includes only two members who participated in the 2014 rulemaking: Member Pearce, who joined the majority vote to adopt the final rule, and Chairman Miscimarra, who joined former Member Johnson in dissent. The majority also cited congressional hearings, proposed legislation, and numerous cases litigated before the Board that have presented “significant issues concerning application of the Election Rule.”

Transparent effort to reopen rule? Sharp division among Board Members as to whether the RFI should be issued was on display in the Board’s notice of the information request. Member Mark Gaston Pearce and Lauren McFerran forcefully dissented from the regulatory action. Pearce said the RFI should be more aptly titled, “Notice and Quest for Alternative Facts.” McFerran similarly saw the RFI as “a transparent effort to manufacture a justification for reopening the Rule.”

Justification inadequate. Pearce said that none of the reasons cited by the Board offered a persuasive justification for the RFI or for what he sees as the groundwork for rescinding or modifying the final rule. “The majority notes that the Final Rule has been in effect for more than two years,” he wrote. “But the fact that two years have transpired since the Final Rule was adopted hardly constitutes a reason for rescinding or modifying it.” The Board has a “wealth of casehandling information” from its own records, Pearce observed. Moreover, because the Board has access to all regional director pre- and post-election decisions, and parties may request Board review of any action taken by regional directors, the Board is already aware of the nature of any complaints related to how the final rule has worked in particular cases.

And, a change in Board member composition, by itself, is not enough reason to rescind, modify, or request information from the public on the final rule, according to Pearce.

“The majority also cites a grand total of four cases (out of the many cases) applying the Final Rule, but none provides any reason to invite public comment on the Final Rule, much less for the Board to reconsider it,” wrote Pearce. As to congressional efforts to overturn the final rule, Pearce pointed out that they did not succeed and “cannot be used to demonstrate that the Final Rule contravenes our governing statute.” As courts have recognized, Pearce continued, “It is well established that ‘the view of a later Congress cannot control the interpretation of an earlier enacted statute (citations omitted).’” Finally, he underscored that, as the majority must concede, “every legal challenge to the Final Rule has been struck down by the courts.”

Both Pearce and McFerran cited the lengthy process behind the final rule. “On April 14, 2015—after thousands of public comments submitted over two periods spanning 141 days, four days of public hearings, and over a hundred, dense Federal Register pages of analysis—a comprehensive update of NLRB election rules and procedures took effect,” wrote McFerran.

McFerran criticized the majority’s failure to respond to what she called Pearce’s “comprehensive analysis” in dissenting from the RFI. She also stressed that said the available preliminary data “indicates that the rule is achieving its intended goals—without altering the ‘playing field’ for unions or employers in the election process.” McFerran, too, underscored that the validity of the final rule has been upheld by every court in which it has been challenged. “In short, the Rule appears to be a success so far,” she observed.

Merely an inquiry? “It is surprising that the Board lacks unanimity about merely posing three questions about the 2014 Election Rule, when none of the questions suggests a single change in the Board’s representation-election procedures,” the notice stated in response to the criticisms laid out by Pearce and McFerran. The majority outlined the dissent this way: Among other things, they “believe that (i) the Election Rule has worked effectively (or even, in Member Pearce’s estimation, essentially flawlessly), (ii) any request for information from the public about the Rule is premature, (iii) merely requesting information reveals a predetermination on our part to revise or rescind the Election Rule, and (iv) future changes will be based on ‘alternative facts’ and ‘manufactur[ed]’ rationales.”

According to the majority, the Board has a duty to “periodically conduct an objective and critical review of the effectiveness and appropriateness of our rules.” As to the dissent’s position that the election rule should be retained without change, the majority wrote, “That is their opinion. However, the Board is seeking the opinions of others: unions, employers, associations, labor-law practitioners, academics, members of Congress, and anyone from the general public who wishes to provide information relating to the questions posed above.”

The majority added that it welcomes the “views of the General Counsel and also the Regional Directors, whose experience working with the 2014 Election Rule makes them a valuable resource.”

The majority also said that its RFI “is unlike the process followed by the Board majority that adopted the 2014 Election Rule. The rulemaking process that culminated in the 2014 Election Rule (like the process followed prior to issuance of the election rule adopted by Members Pearce and Becker in 2011) started with a lengthy proposed rule that outlined dozens of changes in the Board’s election procedures, without any prior request for information from the public regarding the Board’s election procedures.” In contract, this RFI “does not suggest even a single specific change in current representation-election procedures”; it merely poses three questions, two of which contemplate possible retention of the 2014 final rule.

Three questions for comment. The Board’s RFI will seek information from interested parties on the following three questions:

1.

Should the 2014 Election Rule be retained without change?

2.

Should the 2014 Election Rule be retained with modifications? If so, what should be modified?

3.

Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

Responses to these questions will be accepted from December 13, 2017 to February 12, 2018 (within 60 days after publication in the Federal Register). Further details for submitting responses are outlined in the notice.

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