The legal saga of the National Labor Relations Board’s (NLRB) new election rule took another turn on July 1 when a federal judge found the rule was a proper exercise of statutory interpretation.* 

The entire new rule was scheduled to go into effect on May 31, but U.S. District Court Judge Ketanji Brown Jackson issued an 11th hour abbreviated Order on May 30 in a challenge by the AFL-CIO invalidating parts of the rule. The parts that were not invalidated went into effect on May 31.  

The NLRB promulgated the new rule using an expedited method, as opposed to under the Administrative Procedures Act (APA), a time-consuming process that involves providing advance notice to the public and a comment period. The Judge held that the invalidated parts of the new election rule should have been subject to the full APA notice-and-comment procedure, and thus, could not go into effect. 

The Court followed up with a fuller explanation in a Memorandum Opinion on June 7. In her May 30 order, the Judge had addressed only one count of the AFL-CIO’s suit, granting the union summary judgment. There were three other counts, seeking to overturn the entire new rule. The AFL-CIO argued (among other things) that the rule in its entirety was “arbitrary and capricious” – contending that it was not based on reason or facts, but was simply a rejection of the existing procedures. The Judge’s May 30 and June 7 rulings did not involve these other counts because she interpreted the AFL-CIO’s complaint to say that if the Court granted summary judgment on the one count, there was no need for her to rule on the remaining three. 

The AFL-CIO asked the Court to reconsider, saying the Judge had misinterpreted their pleadings, and she should have ruled on all the counts.  

Judge Jackson agreed. On July 1, 2020, she issued an additional decision, granting summary judgment to the NLRB on the remaining three counts. The Judge explained that the Court cannot substitute its judgment for that of the NLRB. However, the NLRB “must show that there are good reasons for the new policy” and not “simply disregard facts” underlying the prior rules “without offering a reasoned explanation.” The Court found the NLRB met this standard. In sum, the NLRB assessed the facts underlying the prior rule, but now considered how the prior election procedures addressed “certainty and finality, uniformity and transparency, [and] fair and accurate voting” in Board elections. These are policy considerations which are properly within the NLRB’s discretion. 

Judge Jackson also rejected the AFL-CIO’s contention that the NLRB had no authority to impound ballots and delay a vote count until any pending reviews of a pre-election ruling were resolved. The Judge said the NLRB’s rule did not contradict the statute, but was a proper exercise of statutory interpretation. 

It is not known if the AFL-CIO plans to appeal. The NLRB has stated it intends to appeal the Court’s May 30th ruling.

 

 

 

National Labor Relations Board (NLRB) General Counsel Peter Robb appears to want NLRB Regional Directors to give more consideration to holding manual, rather than mail, ballot elections than they have during the COVID-19 pandemic.

According to Employment Law360, during a National Employment Law Council webinar, Robb announced he will post on the NLRB’s website his “‘suggested protocols’ for employers and unions to follow before the regional directors who process election petitions will call for in-person votes.’”

Robb said he expects to post the protocols by July 3. He acknowledged that, no matter what his protocols contain, it is up to the NLRB to decide what are “‘sufficient safety measures to run manual elections.’”

During April through June 2020, almost 100% of the NLRB elections conducted have been by mail ballot, even where both the union and the employer wanted a manual ballot election.

Typically, manual ballot elections are conducted on the employer’s premises. In order to vote, employees must be handed a ballot by an NLRB agent who is on the premises to conduct and supervise the election. Regional Directors have uniformly decided that this procedure may subject the agent and employees to the risk of contracting COVID-19. Several of the Regional Directors’ decisions have been appealed to the NLRB. In all cases, the NLRB has decided there was no abuse of discretion in ordering a mail ballot election. For more on manual and mail ballot elections during the pandemic, see our Special Report, Plan Ahead, Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Pandemic.

We will monitor developments and provide updates. Please contact a Jackson Lewis attorney if you have any questions.

The National Labor Relations Board (NLRB) has explained the “past practice” analysis it applies in determining whether a unionized employer’s unilateral actions constitute an unlawful change under the NLRB’s decision in Raytheon Network Centric Systems, 365 NLRB No. 161 (2017). ABF Freight System, Inc., 369 NLRB No. 107 (June 19, 2020).

An employer violates the National Labor Relations Act (NLRA), the NLRB explains, “if it makes a material, substantial, and significant change regarding a mandatory subject of bargaining without first providing the union notice and a meaningful opportunity to bargain about the change to agreement or impasse, absent a valid defense.” An employer can defend itself by showing the change was not material, substantial, and significant; that its “actions did not materially vary in kind or degree from the parties’ past practice.”

In ABF, the collective-bargaining agreement between the employer and the union that represented the employees contained the following Article 26:

Section 2. Use of Video Cameras for Discipline and Dis­charge

The Employer shall not install or use video cam­eras in areas of the Employer’s premises that vio­late the employee’s right to privacy such as in bathrooms or places where employees change clothing or provide drug or alcohol testing speci­mens.

The employer previously had installed cameras throughout the facility without objection. However, in 2013, the union objected to the employer installing cameras in the break/locker rooms, and the employer removed them.

In 2017, the employer installed cameras in its break/locker rooms without giving the union an opportunity to bargain. In response, the union filed an unfair labor practice charge alleging the failure to bargain on this violated the NLRA. The NLRB’s General Counsel issued an unfair labor practice complaint. After a trial, an Administrative Law Judge (ALJ), focusing on Article 26, Section 2, decided the employer did not violate the NLRA because it had acted in accordance with an established past practice of installing cameras anywhere on its premises, except personal privacy spaces. (The ALJ decided the break/locker rooms were not personal privacy spaces, despite record evidence showing employees changed clothes there.)

The General Counsel appealed to the NLRB and the NLRB reversed the ALJ’s decision. The ALJ relied primarily on Raytheon, and, to a lesser degree, a subsequent decision, Mike-Sell’s Potato Chip Co., 368 NLRB No. 145 (2019). Those decisions provide:

  • To determine whether there was an established past practice, the Board will compare the challenged action to the employer’s past actions.
  • The party asserting the past practice has the burden of proving employees would reasonably consider the action at issue to be consistent with what it has done in the past.
  • A past practice finding does not depend on the language of a collective-bargaining agreement.
  • Instead, a past practice analysis simply evaluates whether the employer’s action varied in kind and degree from what had been customary in the past.

Applying those principles, the NLRB rejected the ALJ’s reliance on the contract language to make a past practice determination. It found the installation of the cameras in the break/locker rooms was materially different from the employer’s installations in other parts of its facility. The earlier installations focused on the employees’ work on the employer’s dock, whereas the break/locker rooms installations focused on “the recreational and changing areas.” The NLRB concluded that employees would reasonably consider the change departed from the employer’s past practice. (The NLRB also noted the employer’s aborted 2013 attempt to install cameras in the break/locker rooms.)

Raytheon created leeway for unionized employers to make certain changes without offering to bargain with the union. ABF provides a guide for employers to determine what changes are sanctioned by Raytheon.

U.S. District Court Judge Ketanji Brown Jackson of the District of Columbia has issued a detailed memorandum opinion explaining the reasoning behind her May 30, 2020 order granting summary judgment invalidating portions of the National Labor Relations Board’s (NLRB) revised rules for representation case elections. AFL-CIO v. NLRB, No. 20-CV-0675 (June 7, 2020)

The key issue in the case concerned whether the 2019 election rule amendments promulgated by the NLRB were “substantive” rules affecting individuals’ rights or were merely “procedural.” Under the Administrative Procedures Act, a “substantive” rule can be amended only through a time-consuming process of published notice, public comment, and agency review before the new rule can be implemented. “Procedural” rules can be promulgated more efficiently, without the notice-and-comment period.

The new election rule amendments the NLRB hoped to promulgate in full primarily altered certain timelines and enabled resolution of significant issues affecting voter eligibility and unit configuration before employees cast votes (as opposed to after, which is how the 2014 rules handled the issue). The NLRB characterized all amendments as merely procedural changes to promote finality and more efficient resolution in the election process. As such, the NLRB declined to utilize the lengthy notice-and-comment process.

The AFL-CIO asserted that certain portions of the new election rule substantively affected employee rights, and thus were invalid due to the failure to use the notice-and-comment procedure.

Although Judge Jackson acknowledged the legal distinction between “substantive” and “procedural” rules is a “very murky area,” she granted the AFL-CIO summary judgment. The Judge held that sections of the new rule were “substantive,” repeatedly stating (among other things) that the rules could affect the process of unionization.

Having ruled parts of the rule unlawful, the Judge remanded the rule to the NLRB. The Board could have decided to shelve the new rule in its entirety, but it chose to implement those parts not found to be unlawful. For a more detailed review of the sections of the new rule that the Judge found to be unlawful and those that were not invalidated by her ruling, see Despite Court Ruling, NLRB Implements Much of New Election Rule.

The NLRB has stated that it intends to file an appeal with the U.S. Circuit Court of Appeals in Washington, D.C. We will continue to monitor and report on developments.

The National Labor Relation Board (NLRB) has implemented several parts of its new election rule. U.S. District Court Judge Ketanji Brown Jackson enjoined parts of the rule that, in her view, were not lawfully promulgated. AFL-CIO v. NLRB, No. 20-CV-0675 (D. D.C. May 30, 2020). For more on the ruling, see our post, District Court Hits “Pause” on New NLRB Election Rule. The entire rule was scheduled to go into effect on May 31.

The new rule aimed to reform the controversial Obama-era “quickie election” regulations. Among the reforms that the Court decided would not go into effect on May 31 are:

  • Expansion of the right to pre-election litigation of voter inclusion and eligibility issues
  • Increased amount of time prior to an election for communication with employees about election issues
  • Increased amount of time for employers to furnish a list of eligible voters to the union and NLRB Regional Office
  • Limit to who may serve as election observers (only bargaining unit members)
  • Delay of election certification where an appeal is pending

Rather than shelve the entire rule pending an appeal of the Judge’s ruling, the NLRB has implemented the remaining parts of the new rule unaffected by the Judge’s ruling. These include:

  • Scheduling the initial hearing date at least 14 business days (rather than eight calendar days) from the Notice of Hearing
  • Employer posting of the Notice of Petition within five business days (rather than two calendar days) after service of the Notice of Hearing.
  • Filing, by the employer, of the Statement of Position within eight business days (rather than the seven calendar days under the quickie election rule) after service of the Notice of Hearing
  • Establishment of a Statement of Position to be filed by the Petitioner in response to the issues raised in any Statement of Position
  • Allowing the parties to file post-hearing briefs
  • Ballot impoundment procedures when a request for review (appeal) is pending on the date the election is held

Critics say the Court’s Order prevents immediate application of reforms that would enhance employees’ rights to know who is eligible to vote before ballots are cast, allow more time for informed decision-making about union representation, and avoid procedural confusion caused by bargaining unit certifications while appeals of Regional Director rulings are pending.

The new election procedures are complex. Employers that receive election petitions are urged to contact counsel for guidance.

 

The United States District Court for the District of Columbia has blocked several of the provisions of the National Labor Relations Board’s (NLRB) new election rule. Judge Ketanji Brown Jackson court held that those aspects of the new rule were not lawfully promulgated, because the NLRB did not follow the public notice and comment procedure required to be used by federal agencies when promulgating substantive, as opposed to, procedural rules. The rule was slated to go into effect on May 31, 2020. The court wrote:

The Court . . . 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 court’s decision followed a challenge to the rule filed by the AFL-CIO. The AFL-CIO argued that the NLRB violated the Administrative Procedures Act (“APA”) by publishing its rule without, among other things, following the APA’s notice and comment rulemaking process. (The APA’s process generally takes longer than the procedure used by the NLRB in finalizing its new election rule.) The NLRB has characterized the changes as merely “procedural,” and thus not subject to the more onerous rulemaking process.

At the 11th hour on May 30, the court granted the AFL-CIO summary judgment on its Complaint for Declaratory and Injunctive Relief.  The court issued a brief Order which will be followed “soon” by a memorandum opinion.  In the Order, the court remanded the matter to the NLRB for reconsideration “in light of this Court’s ruling.”

While the court’s interim order does not make entirely clear which sections of the new rule are affected, it appears these aspects are included:

  • Enabling expanded pre-election litigation and resolution of election issues before employees vote
  • Increasing the time to an election
  • Slightly adding to the time for an employer to serve a list of eligible voters upon a petitioner
  • Clarifying the categories of employees eligible to serve as election observers
  • Allowing impoundment of ballots where there is an appeal of election details pending

It is not known whether other parts of the new rule will go into effect as scheduled on May 31 or will be delayed. It also is not known whether the NLRB will appeal or will initiate the full rule-making process.

 

 

The Division of Judges of the National Labor Relations Board (NLRB) has announced it is going to resume holding unfair labor practice hearings beginning on June 1, 2020. The Division had postponed all hearings during May for COVID-19-related reasons.

It appears the NLRB expects to hold most hearings remotely, stating it “has . . . taken the necessary steps to acquire the licenses and equipment needed to conduct such hearings remotely using online videoconferencing technology.”

According to the NLRB’s press release, in order for a hearing to be postponed, a pre-hearing request for postponement will have to be made to the appropriate Deputy Chief Administrative Law Judge (ALJ) or Associate Chief ALJ. The Division of Judges will not take it upon itself to postpone scheduled hearings due to the COVID-19 pandemic.

The parties to the hearing also may request (by motion) or object to a particular type of hearing — videoconference or in-person.

Please contact a Jackson Lewis attorney with any questions about this development or the NLRB.

 

The National Labor Relations Board (NLRB) has lifted its stay of a mail ballot election ordered by a Regional Director and denied the employer’s Request for Review of the Regional Director’s decision, based on the COVID-19 pandemic, to order a mail, rather than manual, ballot election. Atlas Pacific Engineering Company, 27-RC-258742 (May 8, 2020).

On May 1, 2020, the NLRB had granted the employer’s Emergency Motion to Stay the Election “to allow the Board time to fully consider the issues presented by the Regional Director’s direction of a mail ballot election.” Atlas Pacific Engineering Company, 27-RC-258742 (May 1, 2020). The employer also had filed a Request for Review (appeal) of the Regional Director’s decision.

In its May 8 decision, the NLRB relied on San Diego Gas & Electric, 325 NLRB 1143, 1145 (1998), where it held that, although manual ballot elections normally should be held, “there may be other relevant factors that the Regional Director may consider in making this decision” and that “extraordinary circumstances” could permit a Regional Director to exercise their discretion outside of the guidelines in that decision.

The NLRB once again noted its interest in “addressing the normal criteria for mail balloting in a future appropriate proceeding.” For more on this, see our blog post, NLRB Open to Changing Criteria for Mail Ballot Elections.

The employer was an essential business, so its employees were reporting for work during the COVID-19 pandemic. The employer had laid out a detailed plan for conducting a manual election in a safe manner.

In the NLRB’s view, the Regional Director’s main concern about conducting a manual ballot was NLRB employees’ safety. The NLRB acknowledged that it had “not previously found, under San Diego Gas & Electric, that internal Agency considerations constitute extraordinary circumstances that would warrant conducting a mail-ballot election outside of the guidelines specified therein.” The NLRB appeared to sidestep that issue, and decided that a mail-ballot election was warranted on other grounds:

the extraordinary federal, state, and local government directives that have limited nonessential travel, required the closure of nonessential businesses, and resulted in a determination that the regional office charged with conducting this election should remain on mandatory telework. Mandatory telework in the regional office is based on the Agency’s assessment of current Covid-19 pandemic conditions in the local area. Under all of the foregoing circumstances, we are satisfied that the Regional Director did not abuse her discretion in ordering a mail-ballot election here.

As we noted in our Special Report, Plan Ahead, Employers: NLRB Ordering Mail Ballot Elections Because of COVID-19 Pandemic, employers will have a difficult time convincing Regional Directors that NLRB representation elections during the COVID-19 pandemic should be by manual, rather than mail, balloting. Indeed, a review of the Regional Director Decisions and Directions of Election confirms that. Atlas Pacific Engineering Company appears to ensure that pattern will continue.

Please contact a Jackson Lewis attorney with any questions.

The National Labor Relations Board (NLRB) is beginning to address procedural disruptions arising due to the COVID-19 pandemic. On May 6, 2020, without a request from any party to a case, the NLRB “announce[d] . . . a temporary change in the Board’s standard notice-posting remedy to adapt to the ongoing Coronavirus pandemic.” The temporary change applies to both physical posting and e-distributing of the Notice to Employees in unfair labor practice cases. Danbury Ambulance Service, 368 NLRB No. 69 (May 6, 2020).

As noted by the NLRB, the standard notice-posting provision requires posting copies of the notice within 14 days after the notice is served on the party (union or employer) responsible for posting. That practice has to be temporarily changed because the remedy would be hollow if the individuals to whom the notice is directed (employees or bargaining unit members) are not in the workplace to read the notice.

The Board detailed the changes as follows:

    • For an employer that has closed due to the pandemic or does not have a substantial complement of employees at its facility, elimination from the notice-posting remedy of the requirement that the notice be posted within 14 days after service by the Region.
    • Instead, the notice must be posted within 14 days after the employer that has closed due to the pandemic reopens and a “substantial complement” of employees have returned to work.
    • Any pandemic-related delay in the physical posting of paper notices will also apply to electronic distribution of the notice.
    • These changes do not apply to employers whose facilities remain open and staffed by a substantial complement of employees despite the pandemic.

It appears that this temporary change affects notices arising from settlements and where posting follows litigation of a ULP case.

The Board did not modify existing case law defining what constitutes a “substantial complement” of employees. In general, the Board finds an existing complement of employees substantial and representative when at least 30 percent of the eventual employee complement is employed in 50 percent of the anticipated job classifications – but this may vary. It is anticipated that Board regions will investigate that issue when negotiating settlements and notices. Every case is different; a particularized analysis will be required to make a “substantial complement” determination.

Because a decision to settle an unfair labor practice charge may be affected by the timing of the posting/distribution, it is important that employers consider its potential impact prior to settling.

Please contact a Jackson Lewis attorney with any questions about this case or the NLRB.

According to an analysis by Bloomberg Law Daily Labor Report, the Teamsters Union lost almost 65,000 members in 2019, the largest decline in the union’s membership in 20 years. The Service Employees International Union (SEIU) added almost 45,000 members.

The analysis was based on a review of recently released annual LM-2 reports filed by unions with the U.S. Department of Labor. (The LM-2 reports contain detailed financial and other information about the union and can be accessed on the DOL’s website. For most unions, the deadline for filing the financial reports is March 30, but the DOL has said the deadline will be extended if a union has a reason related to COVID-19.)

Besides the SEIU, the Laborers International Union, and the American Federation of State, County and Municipal Employees (AFSCME) also added members; whereas the United Food and Commercial Workers Union, the United Steelworkers Union, and the American Federation of Government Employees lost members.

Union representation in the private sector in 2019 was at 6.2%, an all-time low.

Despite these statistics, it is important that employers not ignore the threat of successful union organizing. Union membership may have decreased, but unions are still winning most representation elections at the National Labor Relations Board (NLRB). In 2019, according to NLRB records, unions filed 995 representation petitions and won 745 elections, an enviable 75% winning percentage.

Please contact a Jackson Lewis attorney with any questions.