November 27, 2021

Volume XI, Number 331

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November 24, 2021

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Congressional Leaders Seek More Time for Comments on New Election Rule

Representatives John Kline (R-Minn.) and Phil Roe (R-Tenn.) have written to National Labor Relations Board Chairman Mark Pearce requesting a 30-day extension to the comment period to the NLRB’s re-issued proposed representation petition rule changes.  The comment and reply comment period ends on April 14, 2014.  While expressing general opposition to significant changes in pre-election procedure as unnecessary, the Republican Representatives focused on the impact the new rules would have on employers in light of the Board’s 2011 Specialty Healthcare decision (357 NLRB No. 83).

As reported in this blog, on February 5, 2014, the NLRB, now duly and fully staffed, essentially re-issued its failed 2011 proposed representation petition rule changes.  Widely called the “quickie” or “ambush” election rule, the original rule was withdrawn as a result of successful legal challenges arising from the Board’s lack of a quorum (less than three members) when the original final rule was promulgated in December, 2011.  The current proposal raises the same concerns as the original – concerns which have been exacerbated by the ensuing years of Board activism.

A public hearing about the new proposed rule has been announced for April 10th and 11th.  Many observers expect the Board to issue its final rule some time in June.

Specialty Healthcare, often called the “micro-unit” case, heightened the legal standard for employer challenges to a union’s petitioned-for unit.  In short, it enables a union to seek certification for small, easier-to-organize, units of employees while imposing greater burdens on contesting employers to prove those units are not appropriate.  Not only is establishing the employer’s case more difficult under Specialty Healthcare, say Representatives Kline and Roe, but the accelerated rules would worsen the problem by requiring a company to locate and retain counsel, analyze the petition, investigate the pertinent facts, determine and formally state its legal position on relevant issues, and prepare for a hearing in even less time than it has now.

Reps. Roe and Kline apparently are not satisfied with a mere lengthening of the comment period.  They also are sponsoring a House bill to prevent implementation of all elements of the Board’s proposed rule.  Passage of any such bill is unlikely in the Senate and, even then, would face a probable veto by the White House.

At this writing, it is not known whether the NLRB will grant any more time for comments, or if it does, whether the additional time will bring facts and arguments to the Board’s attention adequate to affect the content of the final rule. The Board has announced it will consider the voluminous comments received when the 2011 rule was first proposed as part of the record for the present rule.

Jackson Lewis P.C. © 2021National Law Review, Volume IV, Number 93
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About this Author

Thomas Walsh, Labor, Employment, Attorney, Jackson Lewis Law Firm
Principal

Thomas V. Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. Since joining the firm in 1986, Mr. Walsh has represented employers in all aspects of labor and employment law and litigation.

Mr. Walsh has represented employers before numerous state and federal courts, regulatory agencies, as well as in numerous arbitrations. Mr. Walsh has extensive experience in representing employers faced with union organizing drives and in proceedings before the National Labor Relations Board. He has an active practice advising employers regarding...

914-872-6912
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...

617-367-0025
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-...

212-545-4000
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