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SHRM Opposes ‘Ambush-Election’ Rule

By Allen Smith  3/5/2014
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Steve Browne, SPHR, executive director of human resources for Cincinnati-based pizza chain LaRosa’s Inc., didn’t pull any punches about a proposal that would shorten union-election periods when he testified before the House Committee on Education and the Workforce on March 5, 2014.

Speaking on behalf of the Society for Human Resource Management (SHRM), Browne shared his concern that the so-called ambush-election rule would “substantially shorten the period of time between when a representation petition is filed with the NLRB [National Labor Relations Board] and when an election is held and, second, would require employers to more quickly provide union representatives with employee contact information, including personal telephone and e-mail information.”

Reintroduced by the NLRB on Feb. 5, after it was thrown out by a court on procedural grounds, the ambush-election rule (aka the quickie-election rule) could substantially shorten the period between a union petition for an election and the election. Currently, if an employer appeals who should be in a bargaining unit before an election, that period could be six to 10 weeks.

Browne told the committee that “while the precise length of time for the election process will vary under the proposed ambush-election rule, the rule could shorten the process to as little as 10 days.” Even without an appeal of who should be in a bargaining unit, the election period is much longer than 10 days. “I cannot envision how we could possibly educate our team members about an organizing drive in 10 days,” he said.

Tightly Run Business

LaRosa’s is a tightly run business of 15 pizzerias in Ohio and Indiana.

Browne noted that 85 percent of the workforce is part time and 15 percent full time. His HR team is lean, too. Along with Browne, there is just one full-time HR manager and three part-time staff, who specialize in payroll, benefits and call-center recruiting.

In the general workforce, turnover ranges from 17 percent to 20 percent, compared with 29 percent in the restaurant industry. The pizza chain does pretty well in this regard: The average LaRosa employee tenure is four years, but 25 percent of the staff have worked more than five years, and 12 percent have been with the business for 10-plus years. There are 11 employees with more than 25 years of service. The majority of LaRosa employees (71 percent) work as location managers, cooks, delivery drivers, servers and hosts.

Meaningful Discussion Takes Time

The company hasn’t faced a union drive, but Browne shared that “we dedicate a significant amount of time and effort to communicating to our team members about important workplace decisions, like employee benefits, compensation and health care.” And this time is spent preparing for the discussions, holding the discussions and then responding to employees’ concerns.

 “Whenever we are communicating to our employees about workplace issues, a great deal of planning and preparation goes into the effort,” Browne said. “In many situations it requires multiple meetings over multiple days and times, in order to make sure that we are able to communicate and educate our team members directly and to answer any questions they may have.”

And it’s not just HR but the management team, too, that gets involved in communication. Plus, the rollout of messaging can be different for supervisors and front-line staff when it comes to educating employees about the rights, requirements and opinions on an organizing drive.

He said: “SHRM believes if the ambush-election rule is adopted, shortening the time between filing a petition and the election, it will create an imbalance between the rights of employees, employers and labor organizations in the pre-election period. In turn, this will severely impact an employer’s freedom of speech and ability to share its perspective with employees about the organizing drive, thus creating a distinct disadvantage for employers in the organizing process.”

Home Phone Numbers, E-Mail Addresses

In addition, Browne told the committee that the “expanded requirement for providing personal, confidential information about employees is also very disconcerting to SHRM.”

That information includes workers’ home phone numbers and e-mail addresses. “At LaRosa’s we do not collect employees’ personal e-mail addresses or unlisted phone numbers for any other business function, as employees are reluctant to share this information,” he said. “I can only speak for La Rosa’s, but I surmise this would be a similar reaction at many workplaces—that employees will be dismayed, if not outright angry, to learn that this type of personal, confidential information is being shared” with a union without their consent.

‘Solution in Search of a Problem’

Browne concluded that the rule appeared to be “a solution in search of a problem.” He noted that the median time from a representation petition to an election was 38 days—“proof that the period is generally reasonable for employees to weigh the important choice of whether or not to unionize.”

The NLRB had not, Browne asserted, “demonstrated why the 38-day average time period needs to be shortened. Therefore, SHRM believes the proposed ambush-election rule’s reduced time frame is unnecessary because the current 38-day average period gives employees ample time to hear from both the union and the employer prior to a representation election.”

Gamesmanship Reduced

But hearing witness Caren Sencer, an attorney at Weinberg, Roger & Rosenfeld, a firm that represents employees, in Alameda, Calif., countered that the rule is necessary to “reduce gamesmanship.” She explained that as the election period operates now, workers aren’t able to have timely elections; rather, they’re typically forced to wait for the 39th, 40th or 41st day after the petition for election, which she said was too long to wait for voting day.

Although she acknowledged that identifying who is a supervisor and excluded from the bargaining unit—or not a supervisor and included—can be tricky, she said there should not be a stipulated election agreement about who the bargaining unit members are before the election period, the way there almost always is now.

Moreover, Sencer noted that because employers have knowledge about union campaigns well before union petitions, they organize anti-union campaigns long before the petitions—to pretend otherwise is pure fiction.

The proposed rule is “not revolutionary,” Sencer concluded. Instead, it “would prevent delay.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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