AFL-CIO Sues the Board Over New Guidelines – AGAIN

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Last August, we wrote about three important new rules that the National Labor Relations Board (Board or NLRB) proposed. As proposed, the new rules have reversed existing board case practice and / or case law and essentially codified certain key changes to board law through the formal legislative process. Since these changes should be subject to formal regulation once they have been adopted, the Board could neither ignore them nor undo or change them in future Board decisions. To change or reverse it, the agency would have to go through the formal procedures of the Administrative Procedures Act (APA). Now that these new rules have passed through the APA's public announcement and comment process, they are final and are expected to enter into force on July 31.

The proposed changes include the following: (1) a rule that changes the administrative practice of the board of directors in the sense that unfair labor practices charges (usually filed by unions) block elections by ordering that elections be held but whose ballots are confiscated until the ULPs are resolved ; (2) a rule that requires workers to be informed of the voluntary recognition of a union by their employer as their sole negotiator and that they must be given 45 days to apply for election before this voluntary recognition can prevent workers from doing so Ask question about recognition; and (3) A rule that overrides the Board's current case law and states that the mere language in the construction industry's collective agreement language, in that a union is the construction workers' union representative, is sufficient to establish a regular bargaining relationship between them and this outside evidence Requiring, usually in the form of employee signatures on authorization cards or a petition, must be presented and show that the recognition was based on a simultaneous proof of the majority of the employee support.

All rules violate workers 'interests because they improve workers' ability to question or oppose union representation. So it was no surprise when the AFL-CIO and a group of construction unions in the DC / Baltimore area filed a lawsuit against the board and asked a federal judge to block their implementation. Action No. 1: 20-cv-01909-BAH, AFL-CIO et al., Against NLRB, at the U.S. District Court for the District of Columbia, claims that the new rules are arbitrary and capricious, and therefore against the APA violate. The case will be transferred to Judge Beryl Howell, appointed by Judge Obama, for decision. Judge Howell will presumably be asked to make a preliminary injunction decision before implementing the new rules.

This is the second lawsuit recently filed by the AFL-CIO to seek judicial intervention to prevent new employee / employer friendly NLRB rules from taking effect. At the end of May, we wrote about how another Obama-appointed judge, Ketanji Brown Jackson District Court judge, accepted the union's request to join five sections of the Board's new election rules, which are due to take effect on May 31, but refused to join the rest of the law new election rules. The Board has announced its intention to appeal Judge Jackson's decision to the DC Circuit Court of Appeals.

The reason for such suits is clear. In addition to violating his interests with these new rules, Big Labor expects the NLRB's composition and prospects to change, as well as a reversal of the many union-friendly decisions and guidelines they have received from the Obama board should Joe Biden do so in November Conquer White House. However, these expected anti-union reversal changes will not be as easy to achieve if formal APA rules are in place and stand in the way of this change, as the administrative authorities must adhere to their formal rules and may not be able to reverse them by case decision and without disclosure by the formal one Regulatory process. Accordingly, the AFL-CIO anticipates a change in the White House and the board of directors and does everything possible to prevent the new rules of the current board from becoming a reality.

Look forward to Judge Howell's expected decision on the Union's injunction request. If the Board of Directors does not postpone the implementation of these new rules, a decision is expected before July 31.


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