For decades, commentators have complained about how long it can take for workers attempting to unionize to simply get an election in which workers make an up-or-down decision on whether to form a union. For many years, employers were able to raise hyper-formalistic legal arguments that took so long to resolve that the employees initially interested in forming a union had often moved on to other employment. In far too many cases, employers also unlawfully coerce workers during the delay, and those workers eventually withdraw their support for the union.
After much internal political wrangling, the National Labor Relations Board (NLRB) enacted a series of new election procedures in 2014 meant to accomplish a simple objective: to get interested employees to a union election first and then (if necessary) address the typical mountain of anti-worker legal challenges. Prior to the changes, many of these challenges were adjudicated pre-election in time-consuming administrative proceedings in which employers were represented by lawyers, but unions were not. Illustrative examples of such challenges include whether specific workers are "supervisors" ineligible for membership in the proposed union rather than an eligible employee, as well as the precise scope of the “bargaining unit” – that is, whether it is a logical grouping of employees for collective bargaining purposes. Particularly exasperating – as this writer knows from his prior first-hand experience as an NLRB hearing officer – were arcane issues surfacing for the first time.
The new election rules were published in the Federal Register in December 2014 and became effective in April 2015. The NLRB adopted the final rule after considering thousands of public comments, at all times treating the rule as being subject to notice-and-comment procedures. But after Donald Trump took office, the Board published a “Request for Information” (RFI) in December 2017 seeking “information” that implicitly questioned the continuing need for, and efficacy of, a rule that was little more than two years old. Subsequent litigation by the AFL-CIO suggested that the RFI yielded uncompelling results.
Nevertheless, on December 13, 2019, the NLRB reversed many of the Obama-era union election changes without taking or considering public comments. A summary of the Board’s modifications can be found here. Citing “the Board’s clear regulatory authority to change its own representation case procedures” and its “longstanding practice of evaluating and improving its representation case procedures,” NLRB Chair John Ring argued, “These are common sense changes to ensure expeditious elections that are fair and efficient . . . The new procedures will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.”
On March 6, 2020, the AFL-CIO challenged the NLRB's implementation of the “new” election rule on the grounds that it did not comply with the procedural requirements of the Administrative Procedure Act (APA), was arbitrary and capricious in whole and in part under the APA, and was inconsistent with the National Labor Relations Act.
On May 30, federal district court Judge Ketanji Brown Jackson set aside most of the Board’s rule (a small portion was remanded), saying, “The Court [in addition to finding that it has jurisdiction] further finds that the challenged portions of the regulation at issue are not procedural rules that are exempted from the notice and-comment rulemaking requirements of the APA, see 5 U.S.C. § 553(b)(3)(A), and because each of these specific provisions was promulgated without notice-and-comment rulemaking, each one must be held unlawful and set aside . . .”
The irony of the case is that, after years of being chided (usually from the Right) that it should more frequently use rulemaking (as opposed to the adjudicatory process through which it typically changed policy course), the NLRB has managed to politicize the fundamentals of Administrative Law 101 by framing as “merely procedural” one of the most impactful and contentious areas in all of labor law: how quickly workers can get to a union election.
The Board has already stated that it intends to appeal Jackson’s decision.
Showing 2,818 results
Michael C. Duff | June 3, 2020
For decades, commentators have complained about how long it can take for workers attempting to unionize to simply get an election in which workers make an up-or-down decision on whether to form a union. For many years, employers were able to raise hyper-formalistic legal arguments that took so long to resolve that the employees initially interested in forming a union had often moved on to other employment. In far too many cases, employers also unlawfully coerce workers during the delay, and those workers eventually withdraw their support for the union. After much internal wrangling, the National Labor Relations Board (NLRB) enacted a series of new election procedures in 2014, but after Donald Trump took office, the Board published a “Request for Information” in December 2017 that implicitly questioned the continuing need for, and efficacy of, a rule that was little more than two years old.
Katlyn Schmitt | June 2, 2020
In April, the U.S. Supreme Court finally weighed in with an answer to a longstanding question about what kinds of pollution discharges rise to the level of a "point source" and require a permit under the Clean Water Act. The Court dipped its toes into some muddied waters, as this question has been the subject of a range of decisions in the lower courts for decades, with little consensus. Panelists on the Center for Progressive Reform's May 28 clean water webinar examined the Supreme Court's opinion and its possible implications for water quality protections.
Alice Kaswan, Amy Sinden, Brian Gumm, Catherine Jones, Darya Minovi, David Flores, James Goodwin, Joel A. Mintz, Katie Tracy, Katlyn Schmitt, Matt Shudtz, Matthew Freeman, Robert L. Glicksman, Robert Verchick, Sidney A. Shapiro, Thomas McGarity | June 1, 2020
Staff and Board members of the Center for Progressive Reform (CPR) denounce the murder of George Floyd by Minneapolis police officer Derek Chauvin on Memorial Day. We stand with the peaceful protestors calling for radical, systemic reforms to root out racism from our society and all levels of our governing institutions and the policies they administer. CPR Member Scholars and staff are dedicated to listening to and working alongside Black communities and non-Black people of color to call out racism and injustice and demand immediate and long-lasting change. Racism and bigotry cannot continue in the United States if our nation is to live up to its creed of life, liberty, and the pursuit of happiness for all.
James Goodwin | June 1, 2020
It is now beyond debate – or at least it should be – that we, the people of the United States, have been failed by the Trump administration and its conservative apologists in Congress in their response to the COVID-19 pandemic. They failed to put in place mechanisms for systematic testing and contact tracing. They failed to coordinate the efficient acquisition of essential medical equipment such as ventilators and personal protective equipment. They failed to provide for an orderly phase-down of non-essential economic activity. They failed to establish clear, enforceable safety standards protect consumers, workers, and their families engaged in essential economic activity. This stopped being a public health crisis a long time ago. The pandemic is now more fairly characterized as a crisis of government. Fortunately, our democracy has a crucial safety valve that stands ever ready to kick in when our representatives fail to protect us: the civil courts.
Dave Owen, Katlyn Schmitt | May 28, 2020
Sometime soon, EPA is expected to release its final rule limiting state and tribal authority to conduct water quality certifications under section 401 of the Clean Water Act. A water quality certification is the most important tool states have to ensure that any federally permitted project complies with state water quality protections.
Samuel Boden | May 27, 2020
On May 19, the National Weather Service advised people living near the Tittabawassee River in Michigan to seek higher ground immediately. The region was in the midst of what meteorologists were calling a “500-year-flood,” resulting in a catastrophic failure of the Edenville Dam. Despite years of warnings from regulators that the dam could rupture, its owners failed to make changes to reinforce the structure and increase spillway capacity. By the next day, the river had risen to a record-high 34.4 feet in the city of Midland.
Michael C. Duff | May 21, 2020
A recent, interesting lawsuit filed against McDonald's, in Cook County, Illinois, suffers from few of the deficiencies that I have identified in prior postings about public nuisance cases related to COVID-19. The named employee-plaintiffs allege "negligence" in what might look at first blush like a drop-dead workers' compensation case. This time, however, there is a wrinkle.
Darya Minovi, James Goodwin | May 20, 2020
Earlier this week, we submitted a public comment to the Environmental Protection Agency (EPA), criticizing the agency's March 2020 supplemental proposal for its “censored science" rulemaking. This rule, among other things, would require the public release of underlying data for studies considered in regulatory decision-making, and thus might prevent the agency from relying on such seminal public health research as Harvard’s Six Cities study, which have formed the backbone of many of the EPA’s regulations, simply because they rely on confidential data.
Alejandro Camacho, Robert L. Glicksman | May 20, 2020
Much of the discussion of the Trump administration's failed handling of the COVID-19 pandemic has focused on its delayed, and then insufficiently urgent, response, as well as the President's apparent effort to talk and tweet the virus into submission. All are fair criticisms. But the bungled initial response—or lack of response—was made immeasurably worse by the administration's confused and confusing allocation of authority to perform or supervise tasks essential to reducing the virus's damaging effects. Those mistakes hold important lessons.