December 6, 2021

Volume XI, Number 340


December 03, 2021

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Substantial Doubt Cast on Imminence of “Quickie” Election Rule

Despite widespread expectations that the National Labor Relations Board would issue its final revised “quickie” election rules prior to the expiration of NLRB Member Nancy Schiffer’s term on December 16, 2014 (to avoid being frustrated by a 2-2 Republican-Democrat split after her departure), recent events suggest the Board might not be so eager to issue the final rule.  

First, the Obama Administration withdrew its controversial nomination of Sharon Block to replace Member Schiffer, substituting Lauren McFerran (a Democrat), currently chief labor counsel for the Senate Health, Education, Labor and Pensions Committee.  The Senate promptly held a hearing on Ms. McFerran’s nomination, which by all accounts was cordial.  Committee approval (by the very Committee that presently employs Ms. McFerran) is expected, as is full Senate confirmation before the current Congressional term ends (on or about December 9th).  Thus, concerns about a looming Board impasse have been alleviated.

Second, the latest Regulatory Information Service Center (RISC) semi-annual Unified Agenda of federal agency actions states the probable issuance of the long-awaited NLRB final election rule is “To Be Determined.”

The RISC Unified Agenda manual directs agencies to divulge scheduled or “projected” dates of regulatory actions by at least the month and year.  Where the agency has indicated “no estimated future date” for a particular action, the Agenda will read “To Be Determined.”

How is the public to interpret “To Be Determined”?  Is issuance imminent or to be delayed?  Is the final rule fully drafted (as many have said) or is it still being revised?  Will it be issued at all?

Essentially, we have another round of Washington tea-leaf reading.

The practical imperative (avoidance of an ideological standoff on the Board) for immediate issuance of the final rule has receded.  The Board’s ambiguous statement as to timing suggests it may be hedging its bets politically, concerned about Congressional reprisals.  High-ranking Republicans have hinted that the incoming Congress may exercise its power of the purse to prevent NLRB application of the new rule.  It may be that the longer the Board goes without issuing the new rule, the less likely it will issue at all.

Credible arguments exist to support all eventualities. Keep reading your Labor & Collective Bargaining blog for the latest news.

Jackson Lewis P.C. © 2021National Law Review, Volume IV, Number 337

About this Author

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

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...

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-...