Republican Bills Would Halt NLRB’s “Ambush” Union Election Rule

By Ilyse Wolens Schuman and Michael J. Lotito

As a preemptive strike against a final “ambush” representation election rule, Republican lawmakers in both chambers introduced legislation that would blunt its intended effects.

In February, the National Labor Relations Board reissued its controversial proposal that would not only expedite union election procedures, but also fundamentally alter the way elections are carried out, and remove many employer due process rights.

The reissued proposal was substantively the same as that initially introduced in June 2011, which triggered over 65,000 comments. The Board will hold public hearings on this proposed rule in the coming weeks.

What the new bills would do

In response, Sen. Lamar Alexander, R-TN, and Reps. John Kline, R-MN,  and Phil Roe, R-TN, on Thursday introduced bills that would prevent several of the proposed rule’s provisions from materializing. Specifically, the Workforce Democracy and Fairness Act would address many of the procedural aspects of the proposed rule, while the Employee Privacy Protection Act would create privacy safeguards for information employers are required to provide to unions during election campaigns.

The first bill would, among other things:

  • Ensure union elections take place at least 35 days from the day the petition is filed. The NLRB’s proposed rule would cut this time frame by roughly half.
  • Allow employers at least 14 days to prepare their statement of position, and afford them the right to raise additional concerns should they arise throughout the pre-election hearing. The proposed rule would set the pre-election hearing for as early as seven days after the petition is filed, and would require an employer to raise all issues at this time, or forever waive them.
  • Reaffirm that the NLRB must determine the appropriate bargaining unit before the union is certified, and address any questions of voter eligibility beforehand. The proposed rule would push voter eligibility issues until after the election is held, even though certain employees might actually be supervisors ineligible to vote in the first instance.

The second bill would give employers seven (7) days in which to provide employee contact information, known as the Excelsior list, to the union.The bill would also clarify that the Excelsior list would include employee names and one employee-selected method for contacting the employee.

“Congress cannot … stand by and do nothing”

By contrast, the proposed NLRB rule would require employers to provide a preliminary voter list including the names, work locations, shifts and classifications of unit members by the opening of the pre-election conference. In addition, the proposal would require employers to provide a final voter list within two days after the election is scheduled.

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This final list would have to include the names, addresses, phone numbers and email addresses of the employees. This proposal has raised many privacy concerns, as discussed during a recent House committee hearing held to examine the Board’s proposed rule.

In a press release, Rep. Kline said:

At a recent meeting with (NLRB) Chairman Mark Pearce, we laid out our concerns with the proposal and its consequences for workers and job creators. However, it’s exceedingly obvious the board is determined to advance this radical scheme no matter the damage inflicted on our nation’s workplaces. Congress cannot just stand by and do nothing. The common sense legislative approach we are proposing today will strengthen the rights workers and employers have enjoyed for decades.”

More information on these bills can be found here.

This was originally published on Littler Mendelson’s Workplace Policy Update blog© 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

Michael J. Lotito is the co-chair of Littler Mendelson's Workplace Policy Institute that provides advocacy services for clients, associations, and policy leaders on all workplace concerns, and a shareholder in the San Francisco office of the labor law firm. Contact him at mlotito@littler.com. lyse Wolens Schuman is a shareholder in Littler's Washington, D.C. office, and a member of the firm's Government Affairs practice. She works with employers in multiple industries, including trade associations, and leads the firm's Legislative and Regulatory practice. Contact her at ischuman@littler.com.

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