The National Labor Relations Board General Counsel’s Division of Operations Management has issued a sweeping Memorandum to Regional Offices setting forth a variety of circumstances under which those offices should process “currently active [representation] cases” applying the NLRB’s recent decision (PCC Structurals, Inc.) that overruled Specialty Healthcare. “Currently active cases” is defined very broadly – it includes almost all representation cases (open RC, RM and UC cases).  The only exceptions are for cases presently before the Board on appeal (“request for review”) and “where the employees do not comprise a conforming unit in the context of an acute care hospital.” Memorandum OM 18-05 (December 22, 2017).

The Memorandum, entitled “Representation Case Procedures in Light of PCC Structurals, Inc., 365 NLRB No. 160 (2017),” gives parties to representation cases an extensive opportunity to relitigate directed bargaining unit determinations (bargaining unit determinations made by the Regional Director) that were made under the Specialty Healthcare standard and even to withdraw from election agreements (stipulated or consent). Regional Directors are reminded that they have discretion to entertain requests to revisit a unit determination, by way of approval of a request to withdraw from an election agreement upon an “affirmative showing of unusual circumstances,” reopening the record after close of a pre-election hearing or after issuance of a decision and direction of election upon a showing of “extraordinary circumstances,” and treating a request for review as a motion for reconsideration of his or her pre-election decision. According to the Memorandum, the change in the law in PCC constitutes such an “unusual” or “extraordinary” change in circumstances as to warrant reconsideration.

Regions are instructed “to consistently apply the Board’s new analysis at all stages of case processing in currently active cases and to utilize the practices set forth in the memorandum in all active cases.” Regional Directors are instructed to “routinely entertain a party’s request to introduce evidence relevant to a PCC analysis in a currently active case . . .” Such a request can take many forms, including a motion after opening of a hearing or issuance of a decision and direction of election, or pursuant to a request by letter after entering into a stipulated or consent election agreement, even if an election has already been held.

The Memorandum is so broad that even where no party has sought reconsideration of an election agreement or unit determination in a currently active case, Regions are instructed to issue a Notice to Show Cause directing any party to the case to show cause, with specifics, as to why the stipulated or directed bargaining unit is inappropriate pursuant to the analysis set forth in PCC. (The show cause notice will require a party to affirmatively identify with significant specificity those community of interest factors a party is relying upon to show that the directed unit is not sufficiently distinct from another employee group such that it should be rendered inappropriate.)

The Memorandum also takes on several of the short time frames engendered by the April, 2015 “quickie election rule.” First, Regional Directors are given discretion to set hearings beyond the eighth day after service of the Notice of Hearing in matters involving, among other things, “substantial community of interest issues.” In fact, the Memorandum appears to assume that additional time will need to be granted because “[u]nder the community-of-interest standard set forth in PCC, a fact intensive analysis is required . . .” Second, the Memorandum notes that they have discretion to postpone hearings and the due date for the Statement of Position for up to two days upon the showing of special circumstances and for more than two business days upon the showing of extraordinary circumstances. Finally, and perhaps most important, the Memorandum also reminds Regional Directors that election dates are supposed to be set based on the circumstances of each case, and that the “substantial change in the law such as that in PCC is a circumstance where additional time may be required to set an election date.”

This Memorandum gives employers a broad opportunity to ask the Regional Director to revisit a directed bargaining unit determination or to request withdrawal from a stipulated or consent election agreement, even if an election has been held. It represents a unique opportunity for a possible “second bite of the apple” and an chance to perhaps transform all or part of your unionized organization to union-free.

Jackson Lewis attorneys are available to discuss the Memorandum and its possible effect on your organization.

 

 

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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 he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the…

Jonathan J. Spitz is a Principal in the Atlanta, Georgia office of Jackson Lewis P.C. and he is the national co-Coordinator of the Firm’s Collegiate and Professional Sports industry group.

Mr. Spitz coordinates Jackson Lewis’ labor practice for the Southeast region of the United States. He understands the practical and operational needs of clients, helping design pragmatic strategies to minimize risk and maximize performance. He was selected as a “Leader in the Field” by Chambers USA in 2009 and 2010.

He has represented management in numerous counter-organizing drives and participated in dozens of unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and various federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

Mr. Spitz has extensive experience in assisting employers to create union and litigation avoidance strategies suitable to the individual organization, values and industry. He has led teams conducting multi-facility labor vulnerability assessments and has advised employers in responding to corporate campaigns and demands for card check and neutrality.

Mr. Spitz is a contributing author of Employer’s Guide to Union Organizing Campaigns, Aspen Publishers, 2007. In addition, he has authored many articles regarding labor and employment law issues which have appeared in national trade publications.

Mr. Spitz is admitted to practice in the Second, Fourth, Sixth, Eleventh and District of Columbia Circuit Courts of Appeals; the United States District Court for the Middle District of Georgia; and the Georgia Supreme Court.

He received his Bachelor of Arts degree, cum laude, from Tufts University in 1990. He earned his J.D. from Emory University in 1993

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.