Speeches & Floor Statements

Floor Speech: NLRB Ambush Election Rule

Posted on February 10, 2015

We are here today, as the majority leader said, to introduce the Congressional Review Act resolution to stop a new National Labor Relations Board rule. I would like to speak about that for a few minutes and then let the senator from Wyoming continue. 

Last December, the NLRB issued a final rule that shortened the timeline between when pro-union organizers ask an employer for a secret ballot election and when the election actually takes place. I refer to this as an ambush election 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 employee information including email addresses, phone numbers, shift hours, and locations to union organizers. 

The effect of this resolution will be to permit the majority leader to bring this resolution to the floor after the congressional recess. There will be ten hours of debate. The resolution cannot be amended, and it needs a majority vote to pass. The House of Representatives is following a similar procedure. Both houses must vote on it. If it passes both houses, the president can sign or veto the resolution. If the president decides to veto, it would take 67 votes to override. If the NLRB’s new ambush election rule is disapproved, the Board cannot issue a substantially similar rule without congressional approval. 

Today, more than 95 percent of union elections occur within 56 days after a petition is filed, but under this new rule elections could take place in as few as 11 days after a petition is filed. This rule will harm employers and employees alike, and here is how. 

If you are an employer who gets ambushed in other words, a union election happens before you really know what is going on, on day one you get a faxed 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 already been quietly trying to organize for months without your knowledge. Your employees have been able to hear only the union’s pitch. 

By day two or three of this process, you must publicly post an election notice in your workplace and post it online as well if you communicate with your employees electronically. By noon on day seven, 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 this new NLRB rule, you, the employer, waive your rights to use any legal arguments not raised in the document. On day seven, you must also present the union and the NLRB with a list of prospective voters as well as their job classifications, shift hours, and work locations. 

On day eight, a pre-election hearing is held at the NLRB regional office, and an election date is set. By day ten, the employer must present the union with a list of employee names, personal email addresses, personal cell phone numbers, and home addresses. Day 11 is the earliest day on which the NLRB could conduct the election under the new rule. The union has the power to postpone an election by an additional 10 days at this point, but the employer has no corresponding power.

Under this new NLRB rule, before the hearing on day eight, an employer will have less than one week to figure out what an election petition is, find legal representation—many employers don't have a labor lawyer as a matter of course—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 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 rerun election or, worse, the Board could require an employer to automatically bargain with the union.

But it is the employees who stand to lose the most under this new rule. First, because of this ambush election, employees may only hear half the story about what unionizing may mean for them and for their workplace. When a workplace is unionized—especially in a state that does not have a right to work law—employees have their dues money taken out of every paycheck, whether they like it or not. Employees lose the ability to deal directly with their employer to address concerns, or ask for a promotion or raise, and instead, have to work through the union. 

Important considerations, such as which of their fellow employees will be included in the bargaining unit, will no longer be determined before the election. As the two dissenting members of the NLRB put it: Employees will be asked to “vote now, understand later.”

Second, employees lose their privacy because the final rule we seek to overturn requires employers to hand over employees’ personal email addresses, cell phone numbers, shift locations, and job classifications, even if the employee has made it clear 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 is filed.  The current median number of days between when the petition is filed and the election is held 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. So what is the problem? 

The majority leader said it very well when he referred to a 1959 debate over amendments to the National Labor Relations Act. Then, Senator John F. Kennedy warned against rushing employees into a union election. Senator Kennedy said: 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.

The 30-day waiting period is an additional safeguard against rushing employees into an election where they are unfamiliar with the issues. 

It is clear to see this rule is wrong. That is why Senator Enzi, Senator McConnell, and I are asking the Senate to disapprove the rule and prohibit the National Labor Relations Board from issuing any substantially similar rule.


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