NLRB’s Expedited Election Rule: “A Solution in Search of a Problem”

By Ilyse Wolens Schuman

Employee privacy and employer due process concerns were the focal point of Wednesday’s House Committee hearing on the National Labor Relations Board’s proposed expedited election rule.

Last month, the NLRB re-issued an expansive proposal that would dramatically alter how union elections are conducted.

Opening the hearing, House Committee on Education and the Workforce Chairman John Kline, R-MN, said the event “evokes a sense of déjà vu,” as the Board’s reintroduced proposal is substantively similar to that introduced in June 2011.

65,000 comments in response to union election proposal

Kline said the “deeply misguided” rule stifles an employer’s free speech, jeopardizes employee privacy, and gives an employer only seven days to find legal counsel, appear before a regional officer for a pre-election hearing, and identify every possible legal concern or forever forfeit the right to raise them at a later date.

According to Kline, “it’s been almost three years … and the rule is just as bad now as it was then.”

The chairman noted further that instead of addressing the more than 65,000 comments submitted in response to the June 2011 proposal or attempting to enact changes through the legislative process, the NLRB is using “Executive fiat” to implement significant rule changes.

The majority of hearing witnesses agreed.

SHRM: It’s “a solution in search of a problem”

Steve Browne, testifying on behalf of the Society for Human Resource Management (SHRM), said that if adopted, the rule “would cripple an employee’s opportunity to learn the employer’s perspective” during an election campaign. He termed the proposal “a solution in search of a problem,” as most elections are currently held within 38 days, he testified.

Browne (Editor’s note: who is a TLNT contributor) also found the amount of personal information that an employer would have to provide under the rule “disconcerting” and an invasion of employees’ privacy, and would impose an administrative burden on employers, as such information would need to be provided within two business days of the filing of the petition.

William Messenger, an attorney with the National Right to Work Legal Foundation, echoed this sentiment. He claimed that on average, elections are held within 31 days, and that 38 days represents the median time between the filing of a petition and the representation election itself.

Messenger similarly testified that the rule has many flaws, but one of biggest issues for him is that it “contemplates a serious invasion of employees’ personal privacy.” He said the information that an employer would need to provide the union, such as home and email addresses, home phone numbers, and employee schedules is “ripe for abuse,” both deliberate and unintentional.

No provision in the proposal would require the union to give the information back to the NLRB, he testified. The availability of this information could be used to harass the employee, facilitate property crime – as the work schedules would indicate when the employee is not at home – and could lead to identity theft.

According to Messenger, the rule provides no safeguards or other ways to police this personal information, nor does it allow the employee to opt out.

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Re-issuing the rule: Did NLRB consider previous comments?

Another panelist mentioned during the question and answer period that if an employer does not provide this Excelsior list information on time, the election results could be overturned.

During questioning, Messenger noted also that the fact that the Board re-issued the same rule is evidence it did not take into consideration the more than 60,000 comments issued after the first proposal was issued. Another witness said the re-issuance of nearly the same rule despite the tens of thousands of public comments does a disservice to the administrative process.

Several panelists testified that most small employers do not have a labor lawyer at the ready, and that finding outside counsel, having them quickly learn about the employer’s operations, and file a comprehensive statement of position within seven days is a herculean task, and is “short-circuited by the proposed rule.”

Finally, one witness explained the re-proposed rule “fails to take into account watershed changes” to labor law. Specifically, the NLRB’s Specialty Healthcare decision issued in 2011 radically changes how bargaining units are determined, and allows for the creation of “micro” units.

Looking for clarity on NLRB decisions

According to one witness, the NLRB’s General Counsel has said he would provide guidance on bargaining unit determination in light of Specialty Healthcare, and the Board is expected to issue additional decisions on unit determination. Therefore, the contours of the new unit determination doctrine remain far from clear, the witness testified, further complicating the implications of the proposed rule.

For example, under current law, bargaining unit determinations are made prior to the election, as are determinations regarding who is and who is not considered a “supervisor” ineligible to vote in the election. The proposal would defer these decisions until after the election.

Therefore, clarity is needed on the parameters of the Specialty Healthcare decision before a new rule can be finalized. To this end, she testified, it is “essential” that the NLRB extend the proposed rule’s comment period until the additional guidance is provided.

A complete list of panelists and links to their testimony 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.

Ilyse W. Schuman is a shareholder in the Washington, D.C. office of Littler Mendelson. She provides strategic counsel and representation to clients on a broad array of workplace issues and developments in Congress and executive branch federal agencies.

She is a member of the firm's Government Affairs practice and works with employers in multiple industries, including trade associations. She also leads the firm's Legislative and Regulatory practice.

A former top congressional staffer and policy advisor, Ilyse worked on the Senate Committee on Health, Education, Labor and Pensions from 2001 to 2008, serving as minority staff director and chief counsel. She began her work in the Senate as chief labor counsel for Senator Mike Enzi on the Subcommittee on Employment, Safety and Training, where she led legislative and oversight activities.

After leaving the Senate, Schuman joined a leading trade association of electro-industry manufacturers as vice president, where she served as managing director of the Medical Imaging and Technology Alliance, the collective voice of medical imaging equipment manufacturers. Additionally, she served as in-house counsel at a manufacturer and market and technology leader, where she advised the company on human resource matters. In law school, she was a member of the Journal of Law and Policy in International Business.

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