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Feb 12, 2015

By Ilyse Wolens Schuman and Michael J. Lotito

The National Labor Relations Board‘s new “quickie” election rule — set to take effect on April 14, 2015 — will detrimentally impact both employers and employees, according to many witnesses testifying this week at a Senate Committee on Health, Education, Labor and Pensions hearing.

Lawmakers and panelists described the rule’s many amendments to the NLRBs representation election procedures, and debated the rule’s practical implications for all parties involved.

Sen. Tim Scott, R-SC, claimed the rule “drastically tilts the playing field in favor of unions” and chills employer-employee communications.

Condensed time frame would “feel like an ambush”

According to Scott, the rule’s condensed time frame “would absolutely feel like an ambush,” explaining that an employer has about a 10-day window to:

  • Understand what an election petition is;
  • Find an attorney with National Labor Relations Act expertise;
  • Learn what can and cannot be lawfully communicated to employees;
  • Determine which employees are eligible to vote in the proposed election;
  • Submit required information to the NLRB including employee names, job classifications, and contact information, and;
  • Draft a statement of position that addresses all potential issues lest they be waived.

According to panelist Elizabeth Milito, Senior Executive Counsel for the National Federation of Independent Business, this expedited process is “not fair for either side.” Milito testified about the particularly significant impact this new rule will have on small businesses.

She noted the NFIB represents about 350,000 employers, with an average size of about 10 employees. Because there is no small business exemption in the election rule, such employers will have an especially hard time complying with its myriad requirements.

Does NLRB rule infringe on employee privacy?

Milito explained that small businesses often do not have in-house counsel or dedicated HR staff to handle union matters, let alone outside labor counsel on retainer. In the event a small businesses owner is faced with an election petition, it often must “drop all other duties to meet NLRB deadlines,” she testified. Moreover, Milito said an employer’s strategy to communicate with its employees “is exceedingly tricky and fraught with landmines for the untrained spokesperson.”

The rule also infringes on employee privacy, witnesses claimed.

Under the rule, employers are required to provide confidential employee contact information. Milito testified that even assuming the employer has this information, employees might have provided personal email addresses or unlisted phone numbers for emergency information only. Disclosing this personal information without an employee’s consent “creates a breach of trust,” and undermines employee-employer relations, she said.

Finally, she noted that the NLRB has issued this rule twice, and both times has failed to demonstrate any need for the change. She testified that 95 percent of elections already occur within 56 days of the filing of the petition.

Election rule called an “attempt to circumvent Congress”

HELP Committee Chairman Lamar Alexander, R-TN, also made this point, calling the new rule “a solution in search of a problem.” Moreover, he noted that “making even the slightest mistake can require an employer to automatically bargain with employees.”

One witness called the rule “a transparent attempt to circumvent Congress on how, if at all, to reform labor laws after the failure of the prior Congress to pass the Employee Free Choice Act,” and noted that union density in the private sector has been on the decline.

Another panelist emphasized that the rule “effectively eliminates the ability of an employer to communicate its position with employees,” and that an employer who does not have counsel “is in severe jeopardy.”

Wednesday’s hearing was just the latest in a series of public discussion on the regulatory amendments. As ranking member Sen. Patty Murray, D-WA, mentioned, there are over 1,000 pages of transcript testimony resulting from public meetings on this rule.

Senate will consider a resolution of disapproval

In April 2014, the NLRB conducted two days of such hearings, during which interested parties raised many of the flaws inherent in the rule. The Board has been criticized, however, for not adequately addressing these concerns in the final rule.

Finally, Sen. Alexander noted that he introduced a resolution of disapproval (S.J. Res. 8) under the Congressional Review Act to prevent the NLRB rule from being implemented. A companion resolution (H.J. Res. 29) was introduced in the House the same day. Alexander said the upper chamber would consider his resolution after the President’s Day recess.

A complete list of the panelists, links to their testimony, and an archived webcast of the hearing can be found here.

This was originally published on Littler Mendelson’s Workplace Policy Update blog© 2015 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.