Jackson Lewis, which has represented management before the National Labor Relations Board for 60 years, has filed its comments suggesting several important changes to the NLRB’s far-reaching 2014 election rule amendments.  

In December 2017, the Board asked the public to submit comments on the efficacy of its 2014 election rule amendments, expressly asking if the rules should be retained, rescinded, or modified.  

In its comments, Jackson Lewis advocates that the Board take affirmative steps to protect the right of employees to make an informed choice in representation elections. An informed choice means employees casting their ballots with full knowledge of which of their coworkers would be included in the putative bargaining unit, and which individuals would be excluded as supervisors. Jackson Lewis advocates rule amendments that guarantee prompt examination and resolution of these issues before employees are asked to cast their ballots. Possession of this knowledge, pre-election, is likewise important to clarify employers’ legal obligations. An educated employee decision also needs an adequate opportunity to consider the benefits, risks, and obligations of union representation. Jackson Lewis also endorses simplification of the pre-election process by eliminating needless data collection and pointless notifications, and further avoiding unnecessary disclosure of personal employee information. 

In drafting the current rules, the Board did not focus on employees’ ability to make a knowing choice, but, rather, upon the speed with which the NLRB could conduct an election. Under the 2014 amendments, in most cases, the parties may be pressured to hold votes in a little over three weeks from the filing of an election request – about half the time of the Board’s previous goal. To accomplish this, the NLRB all but eliminated pre-election determinations of unit composition and voter eligibility, instead allowing the parties to challenge voters and to defer resolution of these legally significant issues until after the vote – and, often, never at all. The result is employee and employer confusion and uncertainty. Conflating celerity with choice helps neither the employees the National Labor Relations Act was intended to protect nor their employers. 

The 2014 amendments were the most significant change in election practice in the history of the Act – and the most controversial. Now, after the three-year experiment, the Board is commended for taking the unusual step of asking the public for its assessment. The Board, at this time, is not proposing a formal change to its rules, although its request is widely seen as a prelude to possible amendments.  

Jackson Lewis believes employee choice is essential to the democratic process Congress intended in enacting the NLRA. The Board has often acknowledged the importance.  

Jackson Lewis’ full response to the Board can be accessed at https://www.nlrb.gov/reports-guidance/public-notices/request-for-information/submission. Share your thoughts on this with us.

 

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Photo of Thomas V. Walsh Thomas V. Walsh

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments…

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments in the Weingarten Doctrine, The Board Shifts to the Right,” for the St. John’s University Journal of Legal Commentary. He is also co-author of the Atlantic Legal Foundation’s series “Leveling the Playing Field – What Charter School Leaders Need to Know About Union Organizing.” Mr. Walsh is a member of the New York State Bar Association and of the American Bar Association, and participates in the labor and employment law sections of both organizations.

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.