Earlier this afternoon, the National Labor Relations Board held a hearing on Chairman Mark Gaston Pearce’s Resolution pertaining to “Quickie Elections.”  By a 2-1 margin, the Board voted to adopt the Resolution in its entirety.  The Resolution eliminates some pre-election rights of employers in order to shorten the time before a representation election is held.  Republican Member Brian Hayes was present and voted against the Resolution.  Hayes also indicated he has no intention of resigning, putting to rest speculation about an issue that has been in the forefront of labor news lately.

Now that the vote is over, a final rule will be circulated among the three Board members and finalized before year end while the Board still has the Pearce-Becker majority.  Based on comments made during the hearing, and in light of the substance of the Resolution, the time between the filing of representation petition and holding of an election will be reduced significantly.  Our best current estimate is that the time will be reduced so that there may now be approximately 28-35 days between the filing of the election petition and the election.  The timing of the election may increase, depending on the scheduling and duration of any pre-election hearing, the filing of briefs and the speed with which the Regional Director decides the case.  There are also unknowns (depending both on the wording and administration of the final rule) that could reduce this timeframe even more.  Also of note, one of the comments today indicated that the Board majority intends to consider the determination of an individual’s supervisory status to be a post-election matter, to be decided only if the issue is not moot after the election.  This could be particularly problematic for employers.

Since employers will have significantly less time to provide employees with facts that would result in an informed choice in any NLRB election, it is more important than ever for companies to consider a comprehensive preventive labor relations program, including such elements as (1) lawful employer communications about the company’s position on unions, (2) supervisory training to insure compliance with the law in discussions with employees before and during organizing, (3) bargaining unit analyses (for example, to determine who is a supervisor), and (4) a legal analysis and development of best HR practices reflecting recent legal issues (such as the NLRB’s initiative relating to protected concerted activity).  Please do not hesitate to contact the Jackson Lewis attorney with whom you normally work for legal advice regarding the Board’s rules and options for employer consideration.

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Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice 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.

Photo of Daniel D. Schudroff Daniel D. Schudroff

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative…

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of Labor. Mr. Schudroff also advocates on behalf of employers at arbitration hearings and during collective bargaining negotiations. In addition, Mr. Schudroff regularly advises unionized and non-unionized clients with respect to a wide array of issues arising under the National Labor Relations Act and Labor Management Reporting and Disclosure Act. Mr. Schudroff also regularly counsels employers affected by the Fair Labor Standards Act, Railway Labor Act, Worker Adjustment and Retraining Notification Act, Uniformed Services Employment and Reemployment Rights Act, New York Labor Law, and Taylor Law.