House Committee Approves Bill to Undo ‘Ambush’ Election Rule

Other approved bills include one that would limit information provided to unions

By Allen Smith, J.D. Jul 10, 2017
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​The race to unionize may be relaxed if a bill that just cleared a U.S. House of Representatives committee is signed into law.

The "ambush" election rule, controversial from its implementation in 2015, could, in theory, give workers as few as 11 days from the time a union petition is filed with the National Labor Relations Board (NLRB) to consider all the consequences of joining a union before they have to vote in an election. While elections sometimes have been held later than 11 days after a petition is filed, the rule nonetheless puts pressure on employers to hold speedy elections.

The House Education and the Workforce Committee on June 29 passed three labor bills, including one that would revoke the ambush election rule, and moved all three to the House floor. The House and Senate must pass the bills, and the president must sign them, if they're to be enacted.

Three Bills Pass Out of Committee

In party-line votes of 22-16 on all three bills, the committee approved:

  • The Workforce Democracy and Fairness Act, which would ensure no election would take place less than 35 calendar days from when a union files an election petition with the NLRB. The bill also would roll back the NLRB's micro-unions decision, Specialty Healthcare, a ruling that the committee's chairwoman, Virginia Foxx, R-N.C., said allows the creation of unions with employee units as small as two workers. And no pre-election hearing would be held under the legislation until at least 14 days after the petition. The bill would adopt the NLRB's traditional "community of interest" test to determine if there are enough employees with sufficiently common pay, hours and other terms of employment to justify forming a union.
  • The Employee Privacy Protection Act, which would give employees the right to choose one piece of contact information to give to union organizers rather than all of their contact information, such as home address, office location, work schedule, home phone number, office phone number, home e-mail address and office e-mail address. Currently, all of that information must be provided. The Society for Human Resource Management supports the Workforce Democracy and Fairness Act and the Employee Privacy Protection Act.
  • The Tribal Labor Sovereignty Act of 2017, which would amend the National Labor Relations Act (NLRA) to clarify that the law does not apply to any enterprise or institution owned and operated by an American Indian tribe and located on tribal land.

[SHRM members-only HR Q&A: What is the function of the NLRA?]

"Together these proposals will restore fairness and balance," Foxx said. She added that in recent years, "faced with dwindling union membership, liberals have turned to the NLRB and found a willing partner." She said the board had "abandoned its role as an impartial referee and in decision after decision pandered to powerful special interests."

Ranking Member Criticizes Bills

However, the committee's ranking member, Bobby Scott, D-Va., criticized the three bills, saying that they "sabotage the ability to organize and collectively bargain for a better life." He said that the names of the bills "fail to mask" that they are at odds with the purposes of the NLRA. He said that the Workforce Democracy and Fairness Act would mandate "delays for delays' sake," even when the employer and employees agree that an election could take place sooner.

And the Employee Privacy Protection Act would give employers the unfair advantage of having many ways to contact employees, while giving unions only one way to reach them, Scott added.

The Tribal Labor Sovereignty Act would jettison the careful balance between tribes' sovereign immunity and employees' rights, he stated, saying the bill would create "union-free zones wrapped in the garb of tribal sovereignty." He urged "no" votes on all three bills.

But the Tribal Labor Sovereignty Act's original sponsor, Rep. Todd Rokita, R-Ind., called his proposal a "common sense bill to prevent unelected bureaucrats from the NLRB from infringing on the sovereignty of tribes." And the bill had some backing from some tribes. For example, the Navajo Nation issued a statement that "We are simply asking that our right to self-govern is acknowledged and not brushed aside by an external agency."

Scott noted that 75 percent of employees at casinos run by tribes "are not tribal members."

And Rep. Jared Polis, D-Colo., said that the legislation "tries to drive a wedge" between the right to collectively bargain and the right to tribal sovereignty. He said the legislation would harm all workers.

Democrat Amendments Fail

The Democrats proposed several failed amendments to the Workforce Democracy and Fairness Act and the Employee Privacy Protection Act.

For instance, Polis proposed that the NLRA be amended to prohibit employers from holding captive audience meetings on unionization during the period leading up to the election. He noted that such meetings are prohibited in the 24 hours before the election. But otherwise, if an employee refuses to go to such compulsory meetings or leaves a meeting, the employee can be fired or his or her pay may be docked, he said. "These ceaseless, in-your-face barrages push anti-union rhetoric in meetings and by their very design are intimidating," he stated. Polis said that on average, 11 employer-mandated meetings are held during the typical union campaign and added that it was "completely unfair to allow employers to do that."

Rep. Tim Walberg, R-Mich., responded that employers ought to have a right to speak to employees before a decision is made and that employees should be trusted to have enough common sense to make their own decisions. In addition, unions have time to plan and execute their own messages before a union petition is filed; employers don't have this advantage, he said.

As for the committee vice chairman and original sponsor, Joe Wilson, R-S.C., said the bill would prevent employers from having to turn over "excessive amounts of information to union leaders." He added, "I hope we all can agree, workers deserve a voice and their privacy should be protected."

Scott proposed an amendment to the Employee Privacy Protection Act that would require employers to submit their contact lists to unions within two days of the filing of the petition to unionize.

But Rep. Paul Mitchell, R-Mich., said that it is impossible to collect all of employees' e-mail addresses, home phone numbers and other contact information in two days, though this is the current requirement.

Various Democrat representatives also put forward privacy amendments that would protect employees from revealing social media user names and passwords and from being tracked by GPS technology or video surveillance—all of which were defeated.

 

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