December 16, 2018

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NLRB Regulatory Action on ‘Quickie Election’ Rule Put on Back Burner

Employers waiting for the National Labor Relations Board’s revisions to union election rules will have to wait a bit longer. According to the latest agency regulatory agenda, that is a “long-term” action item, a downgrade from its prior ranking. This is a possible indication that revisions to the rules have become a less important priority for the Board for the upcoming year than issuance of joint-employer rules. The Board announced its intent to consider revisiting the election rules in December 2017. See Labor Board Asks: Retain, Modify, or Rescind ‘Quickie Election’ Rules?

Among other significant changes, the Obama-era representation election rules, in effect since April 2015, significantly shortened the time between the date of the filing of a petition for an election with the NLRB to the date the election is held. The rules also require pre-election hearings generally to be held beginning on the eighth day after the filing of a representation petition and require employers to provide union representatives with more information on potential voters than in the past. The rules, often referred to as the “quickie” or “ambush” election rules, have been criticized since their inception as a hindrance to employers’ ability to respond to and educate employees about the impact of union organizing activity.

According to Law360, NLRB Chairman John Ring told attendees at the American Bar Association’s labor and employment conference in San Francisco that the Board will engage in rulemaking to change the rule, but will do so issue by issue, rather than taking on the entire rule at once. According to Ring, the Board will release the first in a series of proposed rules this winter, covering the NLRB’s blocking charge policy and voluntary recognition bar.

Meanwhile, the Board is moving forward with its proposed revisions to the standard for determining joint-employer liability under the National Labor Relations Act. See NLRB’s Proposed Rule Adopts Pre-Browning-Ferris Joint-Employer Standard. The window for public comment on the proposed rule closes on December 13, 2018.

contributed to this article.

Jackson Lewis P.C. © 2018

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About this Author

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...

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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-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.

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