New Rules About Unionizing

In 2014, the NLRB changed its representation election procedures. Many employer groups have been intent on reversing those changes ever since, despite the modest impact they’ve had on the elections. On Dec. 13th those employer groups succeeded, but Jeff Hirsch, writing on the workplace Prof blog, says there may be an administrative law issue because the NLRB didn’t engage in formal notice-and-comment rulemaking before the reversal. The board defended its approach, but Hirsch notes that this leaves the door open for a future board to change the rules back again without notice-and-comment. The same employer groups that pushed for the recent changes made numerous criticisms based on process in 2014, including that the notice-and-comment wasn’t vigorous enough. The rule changes themselves pale to insignificance (mostly they seem to be the result of the Trump administration checking off a pro-forma list of employer-side interests) in contrast to the process questions they raise, says the author.