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National Labor Relations Board Revives Election Rules Amendments

The National Labor Relations Board has announced that it will propose amending its representation case procedures to accelerate the holding of union representation elections, a move that reprises a June 2011 proposal, later made final as slightly modified, that was withdrawn this January after the NLRB suffered court defeats over its adoption.   Dubbed the “ambush” or “quickie” election rule by critics, because it collapsed the time between the petitioning for an election and balloting by employees on whether a union should represent them, the hurry-up procedure deprived employees of a chance to hear their employer’s views on unionization and deliberate before voting.  The Notice of Proposed Rulemaking appears to be identical to the original proposal. It will be published in the Federal Register on February 6, 2014.  Many believe a majority of the present Board members will approve it quickly, without change, following an opportunity for comment.  If agreed to, the rule would change current Labor Board election procedures by:

  • Accelerating the initial hearing date following the filing of a representation petition;

  • Mandating expansive pre-hearing discovery of issues;

  • Significantly curtailing the ability to litigate issues before an election;

  • Eliminating the right to file post-hearing briefs;

  • Barring pre-election requests to review regional decisions;

  • Requiring lists of eligible voters be filed within only two days; and

  • Providing the union with voters’ phone numbers, e-mail addresses, and more.

Interested parties will have 60 days, or until April 7, 2014, to file comments on the new proposal.  As with the June 2011 NPRM, this proposal is expected to be met with widespread opposition from the business community and renewed litigation from business groups.

Elections Could Take Place In As Few As 28 Days Or Even Less

Approximately 95 percent of all representation elections are held within 56 days of the filing of a representation election petition. The new procedures, if adopted, could reduce that number by nearly 30.

The new procedures would place employers at a significant disadvantage in communicating with employees about the merits of unionization before an election.  Experience shows the greater the opportunity employees have to learn about unions and collective bargaining, the less likely they are to vote for union representation.  The proposed changes would reduce that opportunity drastically.  Practicing preventive labor relations in advance of union organizing would become more important for employers than ever.

For additional information about the withdrawn final rule that is essentially the same as the new proposed rule, please see National Labor Relations Board Pauses from Election Rules Amendments

Jackson Lewis P.C. © 2023National Law Review, Volume IV, Number 38

About this Author

Ian B. Bogaty, Jackson Lewis, labor arbitration lawyer, contract administration attorney

Ian B. Bogaty is a Principal in the Long Island, New York, office of Jackson Lewis P.C. Since joining the firm in 2004, he has practiced in traditional labor law areas such as collective bargaining, labor arbitration, contract administration and representation and unfair labor practice proceedings before the National Labor Relations Board and improper practices proceedings before the Public Employment Relations Board.

Mr. Bogaty also regularly counsels clients in the development and completion of preventative labor and...

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

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...

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

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-...

Roger Kaplan employee drug testing attorney, Jackson Lewis Law Firm

Roger S. Kaplan is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He has worked with many employers to help assure their drug and abuse testing policies and procedures comply with the state and federal laws and to develop effective testing strategies. He has frequently addressed business and professional groups on substance abuse testing issues.

Mr. Kaplan has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (...