The NLRB has announced long-awaited major modifications to its controversial 2014 election rule. The draft rule will be published on December 18 and will go into effect 120 days after that, on April 16, 2020. 

Critics of the so-called Quickie Election Rule are bound to view this as good news. The Board characterizes this draft as important to allow parties adequate time to prepare and to avoid unnecessary litigation.

Among the changes under the proposed rule are:

– Pre-Election Hearing Date: Moved from eight days from service of papers by the NLRB on the employer to 14 business days.

– Statement of Position Due Date: Currently, non-petitioning parties have seven days from service of papers to file this comprehensive document. The amended rule moves that to eight business days.

– A New Responsive Statement of Position: For the first time, petitioners will have to respond to employers’ Statements of Position, asserting their position with respect to issues raised. This new petitioner statement of position will be due at noon three business days before the scheduled hearing.

– Unit Scope and Voter Eligibility to be Determined Pre-Election: The Board will return to its earlier standard, holding hearings prior to an election to resolve disputes concerning unit scope and voter eligibility (including issues of supervisory status) before an election is directed.

– Restoration of Post-Hearing Brief: Current rules largely dispense with briefs following a pre-election hearing. The amended rule would restore the right to file a brief within five business days of the hearing, with the possibility of one extension.

– Elimination of the “Quickie” Election: The amended rule would set the standard for scheduling an election as no less than 20 business days following the direction of election. Currently, elections are sometimes held in less than two calendar weeks following the filing of a petition.

– Impounding Ballots upon Filing a Request for Review: To further address resolution of unit and eligibility issues before votes are counted, upon a timely appeal of a regional director’s decision, a scheduled election will go forward, but the ballots will be impounded pending resolution of the review.

In addition, among other changes, the amended rule will provide more time before employers must post and distribute the “Notice of Petition” and deliver final voter eligibility lists.

These changes are positive for the employer community and will give employers greater certainty regarding voter eligibility and unit composition.

We will provide a more in-depth review of the proposed rule soon. Please contact us with any questions.

 

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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.