Alexander: NLRB Ambush Election Rule Jeopardizes Employee Privacy, Forces Elections Before Employers Have a Say

Introduced Monday a Congressional Review Act resolution to stop the rule and prohibit the NLRB from issuing a similar one

Posted on February 11, 2015

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“I refer to this as the ambush election rule, because it forces a union election before an employer has a chance to figure out what is going on. Even worse, it jeopardizes employees' privacy by requiring employers to turn over employees’ personal information including email addresses, phone numbers, shift hours and locations to union organizers.”  –Lamar Alexander 

WASHINGTON, D.C., Feb. 11 –U.S. Sen. Lamar Alexander (R-Tenn.), chairman of the Senate labor committee, today said a rule issued by the National Labor Relations Board in December to speed up union elections will “harm employers and employees alike.”

Alexander said: “I refer to this as the ambush election rule, because it forces a union election before an employer has a chance to figure out what is going on. Even worse, it jeopardizes employees' privacy by requiring employers to turn over employees’ personal information including email addresses, phone numbers, shift hours and locations to union organizers.”

Alexander and Sen. Enzi on Monday introduced a Congressional Review Act joint resolution to stop the NLRB’s new rule from being implemented and prohibit the NLRB from issuing any similar rule.  The Resolution has 45 cosponsors.  House Education and the Workforce Committee Chairman John Kline is conducting a similar process in the House. The resolution requires a simple majority to pass both Houses. If the president vetoes the resolution, it will require two-thirds of the Senate voting to override the veto.

The senator’s prepared remarks follow:

Last December, the National Labor Relations Board issued a final rule that shortened the timeline between when pro-union organizers ask an employer for a secret ballot election and when that election takes place.

I refer to this as the ambush election rule, because it forces a union election before an employer has a chance to figure out what is going on. Even worse, it jeopardizes employees' privacy by requiring employers to turn over personal information including email addresses, phone numbers, shift hours and locations to union organizers. 

Today more than 95 percent of union elections occur within 56 days of the petition-filing.

But under this new rule, elections could take place in as few as 11 days.

This rule will harm employers and employees alike. Here’s how:

If you’re an employer who gets ambushed:

On day 1, you get a fax copy of an election petition that has been filed at your local NLRB Regional Office stating that 30 percent of your employees support a union. 

The union may have been quietly trying to organize for months without your knowledge. Your employees have heard only the union’s pitch.

By day 2 or 3 you must publicly post an election notice in your workplace and online, if you communicate to your employees electronically.     

By noon on day 7 you must file with the NLRB what is called a “Statement of Position.” 

This is a comprehensive written legal document in which an employer sets out legal positions and claims.

Under the NLRB’s new rule, you waive your rights to use any legal arguments not raised in this document.

On day 7, you must also present the union and the NLRB with a list of prospective voters, as well as their job classifications, shifts, and work locations.  

On day 8, a “Pre-Election Hearing” is held at the NLRB Regional Office, and an election date is set. 

By day 10, you must hand the union a list of employee names, personal email addresses, personal cell phone numbers, and home addresses.

Day 11 is the earliest day on which the election could be held. 

Under the new rule, the union can postpone an election by 10 days at this point, but the employer has no corresponding power.

Under this new NLRB rule, before the hearing on day 8, an employer will have less than one week to:

  • figure out what an election petition is,
  • find legal representation,
  • determine legal positions on the relevant issues,
  • learn what statements and actions the law permits and prohibits,
  • gather information required by the NLRB,
  • communicate with employees about the decision they are making, and
  • correct any misstatements and falsehoods that employees may be hearing from union organizers.  

Making even the slightest mistake in the lead-up to an election can result in the NLRB setting aside the results and ordering a “re-run” election – or worse, the Board could require an employer to automatically bargain with the union.

But it is employees who stand to lose the most under this new rule.

First, because of this ambush, employees will hear only half of the story about what unionizing will mean for them and their workplace. 

As the 2 dissenting members of the NLRB put it – employees will be asked to “vote now, understand later.”

When a workplace is unionized, especially in a state that has no Right to Work law, employees have dues money taken out of every paycheck whether they like it or not. 

They no longer deal directly with their employer to address concerns or ask for a raise, and instead must work through the union.

Important considerations – like which of their fellow employees will be included in the bargaining unit – will no longer be determined before the election. 

Second, they lose their privacy because the rule requires employers to hand over employees’ personal email addresses, cell phone numbers, shift hours and locations, and job classifications, even if the employee has said he does not want to be contacted by union organizers.

This rule appears to be a solution in search of a problem.

Only 4.3 percent of union elections occur more than 56 days after the petition-filing.  

And the current “median” number of days between a filing and an election is just 38 days.

These figures are well within the NLRB’s own goals for timely elections.

Unions won 64 percent of elections in 2013. In recent years, the union win rate has actually been going up.

In a 1959 debate over amendments to the National Labor Relations Act, then Senator John F. Kennedy warned against rushing employees into an election, saying:

“There should be at least a 30 day interval between the request for an election and the holding of the election……in which both parties can present their viewpoints.”

It is clear to see that this rule is wrong – and that is why Senator Enzi, Leader McConnell and I introduced a Congressional Review Act Resolution to stop it. 

We will ask the Senate to disapprove The NLRB’s new rule and prohibit the NLRB from issuing any similar rule.  The House will follow a similar process.

I hope the Senate will disapprove this rule very soon.

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