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AFL-CIO sues NLRB to stop new union election rule

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.”

NLRB reinstates investigations gag rule

The National Labor Relations Board ruled today that employers may bar employees from discussing internal investigations.

The board’s decision in Apogee Retail LLC overturns a 2015 decision in Banner Estrella Medical Center, which said employees have the right to discuss workplace investigations unless management can prove that doing so would harm the integrity of their efforts.

In a statement, the board said the Obama-era decision “improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent.“

Democratic member Lauren McFerran, whose term expired Monday, wrote that the decision will help employers cover up misconduct.

“The majority now permits American employers to hold gag rules over their workers if the rule is linked to an open investigation of workplace misconduct,” McFerran wrote. “The likely chilling effect on workers — who will feel compelled to choose safe silence over risky speech — is both obvious and alarming.“

NLRB unwinds 'quickie' election rule

The NLRB said today it will change more than a dozen processes in advance of union elections — an effort aimed at making the process more efficient, the board’s Republican majority said, but one that Democrats argue will bog down the process for workers trying to organize.

The changes repeal core parts of the Obama-era ‘quickie’ election rule that sought to boost unions’ organizing leverage. In a final rule  posted on the Federal Register, 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 NLRB 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 controversial 2014 rule drastically altered union election policies, crippling workers’ rights in order to benefit union bosses,” House Education and Labor ranking member Virginia Foxx (R-N.C.), said in a written statement. “Workers around the country deserve the opportunity to be fully informed before a union election is held, and today’s rule will ensure that ambush elections are a thing of the past.“

Lauren McFerran, the sole Democratic NLRB member, criticized the change, saying it will extend the minimum time frame of contested elections from 23 days to 78 days.

“The primary effect of these changes will be to dramatically increase the timetable for conducting representation elections by imposing unnecessary delay at each stage of the representation case process,” McFerran wrote in her dissent.