Among the National Labor Relations Board’s (NLRB) rulemaking priorities under the National Labor Relations Act (NLRA) are its representation-case procedures, “blocking charge” and voluntary recognition standards, student status as employees, and access to employer private property.

The priorities are included in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Long Term Actions/Short Term Actions), a semiannual compilation of information about regulations under development by federal agencies, published in the spring and fall, that detail the most significant regulatory actions agencies expect to take in the coming year. The Board did not set forth expected rulemaking dates, but short-term actions likely will occur during 2019.

Representation-Case Procedures – Long-Term Action

It appears the Board has its sights squarely set on making substantial changes to the union-friendly amendments made by the Obama-era Board to representation election procedures. In the summary that accompanies this action item, the Board has written: “The . . . NLRB will be revising the representation election regulations located at 29 CFR part 102 (the Election Regulations), with a specific focus on amendments to the Board’s representation case procedures adopted by the Board’s final rule published on December 15, 2014 (the Election Rule or Rule).” (Emphasis added.) Those amendments have been effective since April 14, 2015. They allow 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, submission of a 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. The conventional wisdom is that the NLRB will make employer-friendly changes to the procedures.

Blocking Charges and Voluntary Recognition – Short-Term Action

The Board has carved out items from its representation-case procedures review and included them in its short-term action list. The Board expects to reconsider the standards for blocking charges and the voluntary recognition bar.

The Board’s current practice is to suspend the processing of an NLRB representation petition if a “blocking charge” is filed by the union. (A “blocking charge” is an unfair labor practice charge alleging unlawful conduct which, if true, might interfere with employees’ ability to make a free and uncoerced choice of representative.) In rulemaking, the Board could eliminate blocking charges altogether.

The NLRB’s “voluntary recognition bar” policy requires workers to wait at least six months before seeking to oust a union that had been voluntarily recognized as their bargaining representative (as opposed to having been selected by a majority of the employees voting in an NLRB representation election). In rulemaking, the Board could shorten the bar to less than six months.

Students as Employees – Short Term Action

The NLRB also will consider rulemaking regarding the standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)). For more information, see our article, Labor Board to Revisit Right of Graduate Students to Unionize.

Access to Employer Private Property – Short-Term Action

The NLRB will consider rulemaking regarding the standards for access to an employer’s private property. Conflicts between employer property rights and federal labor law have long been complicated and controversial, often leading to litigation. The case law in this area can be complex and interpretations of the NLRA by the Board have been subject to change. To provide clarity, the NLRB will consider rulemaking about the standards for access (by employees and unions) to an employer’s private property.

Access rules also have been front and center for change on the agenda of the NLRB’s General Counsel, Peter Robb. Robb directed the NLRB’s Regional Directors to submit to his Division of Advice unfair labor practice cases filed in the Regional Offices related to “off-duty employee access to property.” (See “Mandatory Submissions to Advice” Memorandum GC 18-02.) The Memorandum included examples of NLRB decisions and situations when the GC was interested in potentially asking the NLRB to change existing case law. Two of those decisions were Capital Medical Center, 364 NLRB No. 69 (2016), and Piedmont Gardens, 360 NLRB No. 100 (2014).

Joint Employer – Long-Term Action

In addition to the priorities included in the unified agenda, the NLRB also is in the process of rulemaking on the joint employer issue. The NLRB Notice of Proposed Rulemaking (NPRM) regarding the standard for determining joint employers received more than 7,000 comments. (See our article, Labor Board Seeks Public Comments on Proposed Rule for Determining Joint-Employer Status.) They are now being reviewed by a contractor hired by the NLRB to categorize the comments. No timetable has been set for issuance of the rule.

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The NLRB’s published agenda is ambitious and significant. According to Chairman John F. Ring, the Board majority has a strong interest in continued rulemaking and “addressing these important topics through rulemaking allows the Board to consider and issue guidance in a clear and more comprehensive manner.”

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Photo of Linda R. Carlozzi Linda R. Carlozzi

Linda R. Carlozzi is a Principal in the New York City office of Jackson Lewis P.C. She joined Jackson Lewis in 1997 and specializes in traditional labor law. Ms. Carlozzi counsels clients in the development and implementation of preventive labor and employee relations programs. She advises both unionized and union-free clients on a full range of labor and employee relations matters, with a focus on traditional labor law. She has represented numerous employers during arbitration proceedings and negotiations. Ms. Carlozzi also counsels employers during union organizing drives and in labor and employment law proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and other federal, state and city administrative agencies. She regularly represents employers in collective bargaining, provides advice on a diverse range of work place issues, such as those relating to corporate transactions, best workplace practices and conducts management training on a broad range of topics.

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. 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 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.