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July 28, 2014

NLRB (National Labor Relations Board) Begins Public Hearings on Proposed New Election Rules

The National Labor Relations Board yesterday began public hearings on proposed changes to its rules  governing representation elections.  The proposed rules were published in the Federal Register on February 6, 2014. See Notice of Proposed Rulemaking Representation-Case Procedures.

The deadline for initial public comments on the rules ended on April 7; reply comments are due on April 14. The proposed rules, commonly referred to as the “quickie” or “ambush” election rules, because they seek, among other things, to significantly shorten the period between the date a union files a representation petition and the date of the election, essentially are the same rules that were proposed by the NLRB in June, 2011.  Those rules were modified, and made final in December that year.  The rules were struck down by a federal district court in July 2012 on the ground the Board lacked a quorum when they were issued. See Chamber of Commerce of the U.S. v. NLRB, Civil Action No. 11-2262 (2012). The Board’s appeal of that ruling was dismissed, pursuant to a joint stipulation, on December 9, 2013.

Thursday’s public hearing in Washington was streamed live on the internet and featured a full day of testimony.  According to the speakers schedule for the “Public Meeting: R-Case Procedures,” seven topics were addressed by representatives of business groups, labor organizations and  law firms. These topics included: (1) whether electronic signatures should be permitted to satisfy the showing of interest requirement; (2) the setting of a pre-election hearing within seven days after the petition is filed, absent special circumstances; (3) the requirement of a written statement of position; (4) the types of issues that should be litigated at the pre-election hearing; (5) issues related to concluding statements, arguments and briefs following the pre-election hearing, as well as  the issuance of a Direction of Election before the pre-election hearing decision is issued; (6) changes to the process of NLRB review of the Decision and Direction of Election and changes to post-election Board review procedures; and (7) the NLRB’s “blocking charge” policy causing  elections to be held in abeyance until unfair labor practice charges are resolved.

Business groups and labor organizations represented at Thursday’s hearing  included the SEIU, Associated Builders & Contractors, Coalition for a Democratic Workplace, United Nurses Association of California, AFL-CIO, U.S. Chamber of Commerce, IUOE Local 150, IBB, National Grocers Association, Council on Labor Law Equality, Universal Health Systems, Inc., UFCW, NFIB, IBEW, Tennessee Chamber of Commerce, Retail Industry Leaders Association, International Franchise Association, CWA, SHRM, and LIUNA.

The second day of public hearings began at 9:30 a.m. on April 11 and also is being streamed live on the internet.  According to the speakers schedule, the NLRB will hear testimony on several additional topics, including: (1) the standards for setting an election date; (2) whether the proposed rules adequately protect free speech interests; (3) whether or how the rules should address voter lists; (4) whether or how the Board can assist unrepresented local unions and small employers in complying with election procedures; and (5) whether the Board’s rule making procedures demonstrates that the Board values the comments of the public.

Jackson Lewis P.C. © 2014

About the Author

J. Gregory Grisham, McDermott Will Emery Law Firm, Labor Employment Attorney
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J. Gregory Grisham is a Shareholder with the Memphis, Tennessee office of Jackson Lewis P.C.

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About the Author

Howard M. Bloom, Labor, Employment Attorney, Jackson Lewis, Law Firm
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Howard M. Bloom is a Shareholder in the Boston office of Jackson Lewis P.C.  He has practiced labor and employment law representing exclusively employers for more than thirty-one years.  He graduated with honors from the University of Massachusetts, Amherst and from Suffolk University Law School, where he was the Executive Editor of The Advocate: the Suffolk University Law School Journal.  He is a member of the Massachusetts bar, as well as the U.S. District Court for the Districts of Massachusetts, Connecticut, and Rhode Island the U.S. Court of Appeals for the First...

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Philip B. Rosen, Jackson Lewis Law Firm, Labor Law Attorney
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Philip B. Rosen is a Shareholder in the New York City office of Jackson Lewis P.C. and a member of the Firm's Management Committee.  Mr. Rosen also leads the firm's Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009

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