A recent ruling could be challenged after major data errors were found.
“The National Labor Relations Board used flawed data to support a rule change that would reduce unions’ power to defend against anti-labor campaigns, a Bloomberg Law analysis found. Deficiencies in the data could weaken the board’s defense in a legal challenge, two administrative law professors said.
The Republican members of the NLRB want to revamp the so-called blocking charge policy that has been in place for eight decades, which pauses elections to approve or de-certify a union when unfair labor practices are alleged. At the heart of their argument is time: They contend, in a proposed rule released in August, that unions can file frivolous actions as a stalling tactic when unions believe results will go against them, and that resulting delays in elections deprive employees of ‘free choice.’
The NLRB determined that 155 blocking actions were filed from 2016 through 2018, and that the median number of days those cases were delayed ranged from 122-145 days. But a Bloomberg Law review of data supporting the rulemaking found dozens of cases in which the board overstated the length of delays attributable to blocking charges over the last three years—overshooting the mark in one instance by more than 12 years, and in another by five years.
The board’s data over-counted delays in more than one-third of cases—55 in all—in which they said blocking charges were filed. In those cases, the board listed a statistical impossibility: a delay that exceeded the total number of days between when a petition to approve or de-certify a union was filed and when an election was actually held, after the NLRB investigated a blocking charge.
The errors open the NLRB to a potential legal challenge under the Administrative Procedure Act, which instructs courts to invalidate regulations and other actions by federal agencies if they’re proven to be ‘arbitrary, capricious’ or an abuse of discretion, according to the two administrative law professors who reviewed Bloomberg Law’s findings. Litigants have won that kind of claim against the Trump administration at a higher rate than under any other president—a trend that lawyers and administrative law professors say is due to a rush to create new rules amid cutbacks in administrative staff.
‘They could handle a minor error easily, just by issuing an addendum, but this sounds like a big mistake,’ said Richard Pierce, a law professor at George Washington University who’s authored over 20 books on administrative and regulatory law. ‘If they proceed without correcting it, the resulting action would be hard to defend.'”
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