The NLRB’s initiative to upend the well-established, and by its own declarations “outstanding”, representation election procedures took one step closer to reality yesterday when the initial period for filing comments on the proposed rules closed.  As I noted previously in this blog, the “quickie” or “ambush” elections contemplated by the NLRB’s proposed rules represent an attempt to introduce sweeping change when there is no consensus that a problem in need of a solution even exists.  In this initial filing period the NLRB received over 21,000 comments, another indication of the contentiousness of the issue.

Former NLRB General Counsel and current Proskauer partner Ronald Meisburg acted as Of Counsel to the United States Chamber of Commerce in the preparation and filing of U.S. Chamber Comments On Proposed NLRB Rules.pdf.  These comments are a thorough review of the legal, policy and practical implications of the proposed regulations.  As the Chamber notes

The Board has stated that its rules are designed to reduce the time for the scheduling of an election to as little as 10 to 21 days….roughly cutting more than in half the median time of 38 days for holding elections under the current system.  This is grossly unfair and threatens to deny the due process and free speech rights of employers and employees.  Unions already win two-thirds of elections, and have months or even years of time to plan and organize the workforce before the employer may ever be aware of the campaign….

Of course, the people most likely to be impacted by a rush to hold an election are the employees themselves.  If employees only hear one side of the story their free and fair choice is diminished, notes the Chamber

The Board’s proposal threatens to seriously undermine the rights of employers and employees — recognized under §8(c) of the Act and by the Supreme Court–to engage in a free and open discussion on the issue of union representation and collective bargaining.

The comments are well worth reading in their entirety to give one a complete understanding of the vast nature of contemplated change.  Portions of proposed rules that are just as important as the proposed shortened election timeframe, but have received less attention in public discourse, are discussed at length

The requirement that the employer not only agree or disagree with a union’s proposal, but to go further and make a proposal itself, amounts to a forced pleading and raises serious due process and free speech concerns.  It is the union that seeks to organize employees, not the employer, and it is the union’s responsibility to propose a unit appropriate for collective bargaining.  Section 9(b) of the Act states that “[t]he Board shall decide in each case. . .the unit appropriate for purposes of collective bargaining. . .”  The rules should not attempt to absolve the Board of its responsibility, on a case by case basis, to make an appropriate unit finding in proceedings under Section 9(a) of the Act.

Also, the discussion in the comments of the studies cited by the NLRB as justification for the proposed rules are a must read for anyone interested in gaining a greater understanding about how the passions attached to labor relations can sometimes take the place of objective facts.

There is a 14 day reply comment period, so one can expect another flurry of activity on this issue right after Labor Day.  The NLRB membership goes down to three as of Saturday August 27, when Chairman Liebman’s term expires.

We will keep you posted of further developments.



Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.