A Request for Information regarding the “Quickie Election” representation regulations (at 29 CFR parts 101 and 102) will be published on December 13, 2017, the National Labor Relations Board has announced. The RFI will seek input on the 2014 amendments to representation case procedures that reduced the opportunities for employers to communicate with their employees about union issues between the filing of a representation petition and the NLRB-conducted election.

The amendments, which took effect on April 14, 2015, allowed union organizing to move at an accelerated pace by, among other things, significantly reducing the time between the filing of a representation petition and the election from an average of approximately six weeks to an average of 23 days. Other provisions create substantial burdens on employers by requiring, within seven days, the submission of an onerous Statement of Position addressing all potential bargaining unit issues, the provision of copious amounts of information regarding potential voters, and deferring critical election issues, such as supervisory status issues, until after the election is held.

While the Board’s stated purpose in adopting the 2014 rules was to simplify representation-case procedures, the rules placed substantial pressure on employers to make critical decisions and produce important documentation within tight deadlines. By compressing the time period between the filing of the petition and the election, the rules also eliminated much of an employer’s ability to communicate with its employees about unionization issues.

From December 13, 2017, through February 12, 2018, the NLRB will allow interested parties to respond to three questions about the current rule:

(1) Should the 2014 Election Rule be retained without change?

(2) Should the 2014 Election Rule be retained with modifications? If so, what should be modified?

(3) Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

Before April 14, 2015, elections traditionally were conducted approximately six weeks after the filing of a representation petition. A return to this longer period would afford employers a much more reasonable amount of time to communicate with their employees about unionization. In addition, employers would be able to focus on providing critical information to employees about their rights and the advantages and disadvantages of unionization.

It remains to be seen what action, if any, the Board will take after reviewing the answers it receives. Nevertheless, its RFI should be cause for optimism among employers.

Action Items for Employers

Jackson Lewis, a nationwide management labor law firm whose attorneys have represented employers in thousands of NLRB representation case matters, is analyzing the rules to make recommendations to employers or employer groups about the best courses of action. Employers and employer groups who wish to comment will have a full opportunity to do so, either singly or in conjunction with labor counsel experienced in representing employers in representation cases.

If you or an industry group of which you are part desire further information or guidance or representation in submitting comments, please contact Philip Rosen, Jon Spitz, Thomas Walsh, Howard Bloom or the Jackson Lewis attorney with whom you regularly 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 Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a principal in the Atlanta, Georgia, office of Jackson Lewis P.C. and co-leader of the firm’s Labor Relations practice group.

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.