New NLRB rule would allow ‘ambush elections’ at workplaces

By Eric Boehm | Watchdog.org

New rules issued this week by the National Labor Relations Board will require businesses to turn over employees’ email addresses and phone numbers to unions seeking to organize a workplace.

The series of changes will streamline the process of holding union elections in a workplace and will help unions recruit more workers during the organizing process. The new rules were applauded by labor unions and decried by business groups as a threat to workers’ freedom and employers’ rights.

SO LET IT BE WRITTEN, SO LET IT BE DONE: The NLRB issued new rules this week that will speed up the timeline for union elections. Employers’ groups say it’s bad news.

Now, the average time between when a union files a representation petition — the first step in organizing a workplace into a union — is 38 days, but the new rules could trim that to as few as 10 days, which, opponents said, would allow so-called “ambush elections” without giving management enough time to respond to workers’ demands.

The NLRB said the proposed rules would modernize the election process and limit the ways employers can stall for more time in the lead-up to an election. The same rules would also speed-up the process for de-certification elections when a workplace decides to no longer be a part of the union.

“Unnecessary delay and inefficiencies hurt both employees and employers,” said Mark Gaston Pearce, chairman of the NLRB. “These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union.”

But Geoff Burr, president of the Associated Builders and Contractors, a trade association for non-union construction firms, said the changes were “a solution in search of a problem,” because unions already win more than 60 percent of certification elections nationally.

“Shortening the election period does nothing to ensure a fairer election and it is clearly not necessary to help the NLRB meet its self-imposed goal for election timeframes,” Burr said. “It denies employers their rights to free speech and employees the opportunity to make a fully informed decision.”

Under the new rules, pre-election legal proceedings must begin within seven says of the petition being filed, and pre-election appeals will be eliminated. Employers will be required to turn over a list of all employees to the union within two days of the petition filing, instead of seven.

FOR THE WORKERS: Richard Trumka, boss of the AFL-CIO, praised the new rules as a victory for workers and labor unions.

“The current NLRB election process is riddled with delay and provides too many opportunities for employers to manipulate and drag out the process through costly and unnecessary litigation and deny workers a vote,” Richard Trumka, president of the national AFL-CIO, an umbrella group for dozens of smaller unions, says in a statement about the new rules.

Trumka said the rules are a step in the right direction to reduce delays in the election process.

The NLRB approved a similar set of rules in 2011, but ABC and other groups representing employers challenged. A federal judge struck down some of the rules in 2012, and the NLRB agreed to withdraw the rest because the rule was approved without a quorum of three members present.

But that victory was always going to be temporary, Burr predicted at the time.

Sure enough, the NLRB voted to reinstate many of those same provisions, with a few additions.

One of the new rules will require employers to turn over contact information for all employees after a union election petition is filed.

Unions will be able to use the information to recruit support for the union.

Although phone numbers and email addresses might be innocuous enough, the information would be passed along without the workers’ consent.

And since unions are exempt from some state laws against stalking or trespassing when their members are engaged in organizing activities, as a report from the U.S. Chamber of Commerce revealed in 2012, workers are probably right to be concerned about how their personal information will be used.

The new rules were approved with the full five members of the NLRB present for the vote, so it’s unlikely to be overturned in court on the same grounds as the previous iteration. Democratic appointees Kent Y. Hirozawa and Nancy Schiffer joined Pearce in voting for the new rules while Republican appointees Philip Miscimarra and Harry Johnson dissented.

But ABC and affiliated groups will review the new rules and decide if there are grounds for another legal challenge, Burr said.

“It’s disappointing that the NLRB has doubled down on this failed ambush elections rule,” he said.

The proposed new rules are open for public comment until April 7, when the NLRB is scheduled to vote to adopt them.

Boehm is a reporter for Watchdog.org and can be reached at EBoehm@Watchdog.org. And follow @WatchdogOrg and @EricBoehm87 on Twitter for more.

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Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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