NLRB headquarters in Washington. Credit: Diego M. Radzinschi / ALM

A first step from federal labor regulators to unravel an Obama-era rule that sped up the power of employees to form unions was derided by a Democratic member of the National Labor Relations Board as a “notice and request for alternative facts.”

The Republican-led NLRB on Tuesday issued a notice and request for information regarding a rule, in place since 2015, that let employees hold union elections in as little as two weeks. The notice, the first step in any effort to undo the rule, requests information about whether the rule should be changed, modified or rescinded.

Conservative groups dubbed the regulation the “ambush election” rule, and there were attempts to block it in the courts and through Congress before it was put in place.

William Emanuel

The new makeup of the NLRB recently shifted to Republican for the first time in nearly a decade, with new Republican members William Emanuel and Marvin Kaplan joining chair Philip Miscimarra. The general counsel, Peter Robb, also telegraphed his intention recently to roll back a slew of Obama-era rules.

The deregulatory push is well underway at the U.S. Labor Department. Officials there are seeking public comment about the Obama-era overtime rule, which sets a salary threshold for those eligible for time-and-a-half pay over 40 hours a week. The administration also proposed a rule that would scuttle a measure that prevents employers from pooling tips earned by workers.

A move by the U.S. Office of Management and Budget blocked a process that would have required employers to submit salary information for its employees on annual forms, something the U.S. Equal Employment Opportunity Commission passed to create better pay data transparency.

Democratic NLRB members Mark Gaston Pearce and Lauren McFerran dissented from the election rule proposal. They said the move was an attempt to thwart union procedures in favor of business. Pearce said the NLRB’s public notice “should more aptly be titled, ‘A Notice and Quest for Alternative Facts.’” Pearce recounted and defended the three-year effort that preceded the formulation of the rule.

“Through this extensive process, the fundamental questions were asked and answered,” Pearce wrote in his dissent. “The amended procedures have now been in place for some two and a half years, and my colleagues show no serious justification for calling them into question. Indeed, it is with some irony that I am reminded of the sentiment expressed in dissent to the final rule in 2014 that ‘the countless number of hours spent by board personnel in rulemaking’ would be better spent expeditiously processing cases.”

He said Miscimarra and member Harry Johnson, who dissented in 2014 at the time the board adopted the new union-election rule, made “erroneous predictions” regarding how the rule would work in practice.

McFerran, in her dissent, said: “During the short, two-and-a-half years since the rule’s implementation, there has been nothing to suggest that the rule is either failing to accomplish these objectives or that it is causing any of the harms predicted by its critics.” She called the request for information “a mere fig leaf to provide cover for an unjustified attack on a years-long, comprehensive effort to make the board’s election processes more efficient and effective.”

“The nature and timing of this [request for information], along with its faulty justifications, suggests that the majority’s interest lies not in acquiring objective data upon which to gauge the early effectiveness of the rule, but instead in manufacturing a rationale for a subsequent rollback of the rule in light of the change in the composition of the board,” McFerran wrote.

The majority address the criticism of the two Democratic members, arguing that posing the question about the merits of the rule—and whether it should be kept or modified—does not suggest any change will happen.

“It is surprising that the board lacks unanimity about merely posing three questions about the 2014 election rule, when none of the questions suggests a single change in the board’s representation-election procedures,” the NLRB majority wrote in the public notice.

The board’s Republican members argued that it is the board’s duty “to conduct an objective and critical review of the effectiveness and appropriateness of our rules.”


The NLRB’s public notice seeking comment about the election rule is posted below.


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