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Bills in Congress Would Short-Cut ‘Quickie Election Rule,’ ‘Micro-Unit’ Reversals

With the recent confirmation of Marvin Kaplan to the National Labor Relations Board, the Obama (pro-union) Board is officially transitioning into a Trump (pro-business) Board. With that, Republicans hope, will come a change in the Board’s jurisprudence with respect to labor-friendly rulings by the Obama Board.

At the top of the “wish list for reversal” are the Board’s joint employer decision, its “quickie-election” rules, and its endorsement of “micro-units.”

Those doctrines, opponents argue, allow labor unions to ignore the wishes of union dissenters and gerrymander groups of employees who most support unionization to maximize the chances of unionization. Because shorter communications campaigns by employers reduce employers’ opportunity to effective communicate their “union-free” message to employees, unions win more often when elections are quicker.

At least some Republicans in Congress are not willing to wait for the Board to rule on appropriate test cases to reverse course.

The “Workforce Democracy and Fairness Act,” H.R. 2776, was introduced by Rep. Tim Walberg (R-Mich.) on June 6, 2017, and received prompt attention from the House Committee on Education and the Workforce. Ten other Republican Representatives have signed on as co-sponsors, and Sen. Lamar Alexander (R-Tenn) has introduced a virtually identical bill in the Senate (S. 1350).

H.R. 2776 would undo many key aspects of the “quickie election” rules, including:

  1. Requiring any pre-election hearing be held at least 14 days after the filing of a petition (instead of the average 8-10 days before a hearing under the current rules);

  2. Requiring all relevant and material issues that may moot or impact the election are resolved prior to the holding of the election. (Under current rules, most issues cannot be litigated until after the election); and

  3. Ensuring that an election is not held sooner than 35 days after the filing of a petition. (Elections are currently held in about 23 days, and sometimes as quick as 11 days, after petition is filed).

H.R. 2776 also would change how the Board analyzes a petitioned-for bargaining unit:

  1. The Board must determine “the” appropriate unit (rather than evaluate whether a proposed unit is “an” [one of possibly two or more] appropriate unit);

  2. The bargaining unit must include all employees with a “sufficient” community of interest, according to eight factors, and the burden is on the requesting party to demonstrate that certain employees should be excluded based on having sufficiently distinct interests; and

  3. Accretions (additions to an existing bargaining unit) must have an “overwhelming” community of interest before they are added.

While unions may “campaign” long before a petition is filed, and may directly ask employees whether they support unionization (which is illegal for employers to do), employers benefit from a longer campaign period to explain its message and perspective on unionization. By emphasizing the importance of inclusion of employees in the bargaining unit, the proposals would prevent unions from carving out dissenters based on slight differences in their particular work, conditions, or environment.

One way or another, expect to see significant changes in the NLRB’s jurisprudence.

Jackson Lewis P.C. © 2020National Law Review, Volume VII, Number 240

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About this Author

Associate

Adam C. Doerr is an Associate in the St. Louis, Missouri, office of Jackson Lewis P.C. He represents management in labor and employment matters before state and federal courts, administrative agencies and arbitrators.

Mr. Doerr’s practice involves representing clients in all phases of litigation, including jury and bench trials, dispositive motions, discovery, pre-trial strategy, and client counseling and best practices. Mr. Doerr’s experience includes investigating allegations of employee and managerial misconduct and ...

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

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