AFL-CIO sues NLRB to stop new union election rule

  • March 9, 2020

The AFL-CIO sued the Trump administration in an effort to stop the repeal of an Obama-era union election rule set to take effect next month.

The union federation argued that the National Labor Relations Board violated the Administrative Procedure Act by not giving the public sufficient opportunity to comment before issuing the final rule in December. In addition, the AFL-CIO said the board “failed to consider data and other information … that contradicts assertions in the Board’s rationale for the rule,” and violated the National Labor Relations Act by preventing regional directors from certifying election results until legal disputes are resolved.

The rule repeals core parts of the Obama-era ‘quickie’ election rule that sought to boost unions’ organizing leverage. The NLRB in 2017 issued a request for information on whether it should repeal the rule, and last year issued a final rule doing just that.

In the final rule, the NLRB said it generally will require disputes over the scope of a bargaining unit and voter eligibility to be litigated at pre-election hearings, reversing an Obama-era requirement for businesses to postpone virtually all litigation until after workers vote on whether to join the union. Unions argue that pre-election litigation is a stalling tactic that favors management.

The board also said it will extend a notice requirement for pre-election hearings from 8 calendar days to 14 business days; require employers to post notices of an election petition five days before service of a hearing notice, compared to two days under current procedure; and instruct regional directors to in many circumstances schedule an election for the 20th business day after a direction of election is issued. The rule, in addition, lengthens the time frame by three days in which employers must provide voter lists after a direction of election is issued.

The AFL-CIO, in its lawsuit, argues that the rule violates the NLRA by placing a “categorical stay” on the certification of union election results “premised solely on the possible filing or pendency of a request for review.”