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representation elections, a move that reprises a June 2011 proposal, later made final as slightly modified, that was withdrawn this January after the NLRB suffered court defeats over its adoption.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 will continue to follow the new NPRM and provide you with additional information on the rulemaking and related developments.

If you have any questions regarding the impact of this proposed rule on your organization, please do not hesitate to contact one of the attorneys listed or the Jackson Lewis attorney with whom you work.

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Photo of Ian B. Bogaty Ian B. Bogaty

Ian B. Bogaty is a Principal in the Melville, Long Island Office.  Mr. Bogaty received his B.A. from Binghamton University in 2000, and his J.D. from Hofstra University – School of Law in 2003.  Mr. Bogaty received a Masters of Law in Labor…

Ian B. Bogaty is a Principal in the Melville, Long Island Office.  Mr. Bogaty received his B.A. from Binghamton University in 2000, and his J.D. from Hofstra University – School of Law in 2003.  Mr. Bogaty received a Masters of Law in Labor and Employment Law from New York University in 2004.  He is admitted to practice in New York. He is admitted to practice in New York, and the United States District Courts for the Southern and Eastern Districts of New York.

Since joining Jackson Lewis in June 2004, Mr. Bogaty 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.

Photo of Howard M. Bloom Howard M. Bloom

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.

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 campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

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.