In non-Coronavirus related news, the AFL-CIO on March 6 filed a lawsuit against the National Labor Relations Board (NLRB) alleging that the agency violated the Administrative Procedures Act (APA) when it issued its representation election procedure rule in December 2019. The suit asks for a declaratory judgement against the rule, which is currently scheduled to take effect on April 16, 2020, and a permanent injunction against its implementation.

The labor federation’s latest action comes as little surprise. As this blog noted at the time, organized labor cried foul last December when the NLRB released its much-anticipated changes, which were designed to address the so-called “ambush election” rule issued in 2014. The rule was just one of the many lopsided policies of the Obama-era NLRB designed to facilitate union organizing while eroding the rights of both workers and employers.

With a labor-friendly majority, the Board’s ambush election rule dramatically shortened the time period for workplace elections over whether to form a union, which prevented workers from getting full and complete information about the impact of having union representation. The rule also required employers to disclose their employees’ personal contact information to union organizers and undermined employers’ due process rights.

In the recent final rule, the current Board majority addressed a variety of issues emanating from the ambush election rule. The new rule gives employers more time to file Statements of Position prior to a pre-election hearing, whereas the ambush rule allowed only seven days. The rule also requires certain disputes over voter eligibility to be litigated before a representation election occurs unless both parties agree otherwise and allows parties to file post-hearing briefs, while the ambush rule did not allow either.

Under the new rule, the timing of elections also changed such that they cannot occur sooner than 20 business days after the direction of an election, rather than on the “earliest date practicable” under the ambush rule, and it gives employers several more days to provide a voter list to the union. In addition, parties can seek Board review of a regional director’s (RD) decision and election results would be impounded until the Board acts on the request, while the old rule removed the provision for automatic impoundment and required the RD to certify the results of the election.

When the new election rule came out, the AFL-CIO criticized the Board’s decision not to publish a proposal seeking public comments, which government agencies typically must do when issuing regulations. The lawsuit repeats that complaint, saying that the federation would have filed comments if it could have. It also alleges that the new rule is “arbitrary and capricious” for failing to consider data about the effects of the ambush election rule.

For its part, the NLRB asserts that it has amended its procedures many times before without notice and comment because its changes, including the final rule, are procedural as defined in 5 U.S.C. 553(b)(A), and therefore exempt. That provision does exempt “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” Whether that exemption applies ultimately will be for a judge to decide.