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submit comments on the efficacy of its 2014 election rule amendments, expressly asking if the rules should be retained, rescinded, or modified.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.