Ambush Election Rule Criticized Before Senate

By Allen Smith Feb 13, 2015
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The Senate is mobilizing against the National Labor Relations Board’s (NLRB’s) ambush election rule.

Employers had their day before the U.S. Senate Committee on Health, Education, Labor and Pensions on Feb. 11, 2015, testifying against the rule issued by the NLRB last December and scheduled to take effect April 14.

The hearing came one day after Committee Chair Sen. Lamar Alexander, R-Tenn., and Sen. Mike Enzi, R-Wyo., introduced a Congressional Review Act joint resolution of disapproval (S.J. Res. 8) to stop the rule from being implemented and prohibit the board from issuing any similar rule. The resolution has 45 co-sponsors. House Education and the Workforce Committee Chairman Rep. John Kline, R-Minn., also introduced a resolution of disapproval (H.J. Res. 29). The resolution requires a simple majority to pass both chambers. If the president vetoes the resolution, it will require two-thirds of the Senate to override the veto, Alexander noted.

The Society for Human Resource Management (SHRM) has joined a lawsuit challenging the ambush election rule.

‘Most Dramatic Revision’

“I have practiced law for nearly 29 years focusing on labor relations law and the NLRB’s ambush regulation is, without question, the most dramatic revision to the processes surrounding that law I have ever confronted,” Mark Carter, an attorney with Dinsmore & Shohl in Charleston, W.Va., said in written testimony on behalf of the U.S. Chamber of Commerce. “I have reviewed the very technical changes that this regulation makes to the union election process and I conclude that the changes wrongly accelerate the election process to the detriment of both employers and employees,” he said.

“I have been involved in numerous union election campaigns and this regulation will, quite simply, stack the deck against employers while depriving employees of information they need to make a rational decision.”

He added, “There is simply no need for this regulation, which makes its true purpose—to increase union membership rolls—that much more apparent.”

Carter explained that the regulation “has been referred to as the ‘ambush election’ regulation because the regulation reduces the time frame of a representational organizing campaign by a labor union from approximately 40 days to as little as 10 days. The dramatically shorter time frame is seen by employers as an ‘ambush’ in that the employer is unprepared for and unable to effectively respond to the petition for representation in the very short time frame mandated by the new regulation.”

Carter further testified, “Though couched in terms of fairness and efficiency, the fundamental principle of the ambush election regulation is that it is far easier to win a campaign when the other candidate is unaware of the election. A companion principle is that if the other candidate is consumed by bureaucratic obligations for the period of the campaign, your chances of winning the election are nearly assured.”

Under the final rule, the NLRB will schedule a hearing within eight days of the date a petition is filed. The day before the hearing, the employer must present a statement of position articulating all its arguments regarding the petition, a tight deadline that Carter called “an outrageous requirement.” If the employer fails to include an argument in the position statement, those arguments are waived, Carter added.

Alexander noted that on day 10, the employer must hand the union a list of employee names and those employees’ personal e-mail addresses, personal cellphone numbers and home addresses, which he said constitutes an invasion of workers’ privacy. And he clarified that the 11th day is the earliest day on which the election could be held. “Under the new rule, the union can postpone an election by 10 days at this point, but the employer has no corresponding power,” Alexander said.

The added paperwork in a compressed schedule makes it less likely the employer will exercise its right to communicate with employees prior to the election, Carter said. So, employees will wind up hearing only the union’s side, he predicted, “instead of the full and robust debate of the issues anticipated by Congress in creating the act.”

‘A Lot of Gamesmanship’

However, Ranking Member Sen. Patty Murray, D-Wash., asked union attorney Caren Sencer, a partner with Weinberg, Roger and Rosenfeld in Alameda, Calif., “Is the point of this rule speed?”

Sencer answered, “No, it’s to take out the parts that aren’t necessary. Right now, there’s a lot of gamesmanship in how this process works.

“The current system provides many opportunities for employers to delay the process,” Sencer said in written testimony. “This puts enormous pressure on the union to agree to unreasonable demands from the employer regarding the composition of the bargaining unit and other issues.”

She said that “Under the current system, the employer can force a hearing solely for delay purposes to resolve issues not relevant to whether there is a question concerning representation requiring an election. This delays an election weeks and sometimes months.”

Sencer added, “Employers complain that the new rules will rush elections and deprive them of a full opportunity to give their views on unionization to employees. The timing issue is a red herring.

“Employers who want to mount an anti-union campaign have plenty of opportunity to do so—their opportunity is not limited to the period after the union’s petition is filed. In virtually all the cases where clients have field election petitions, the employers have been well aware of the organizing efforts prior to the filing. In many cases, employers have already started their overt anti-union campaigns. In some cases, they have made a tactical decision, notwithstanding the organizing campaign, to wait to see if a petition is filed,” Sencer remarked. “They often wait until the last weeks before the election to mount their campaign. Many employers have anti-union inoculation programs in place, which seek to influence employees from the date of hire and throughout employment on a regular basis regardless of whether or not the employer has ever been a target of union organizing. In my experience, virtually every employer is aware of any union organizing effort and can begin its campaign, if it chooses to engage in one, long before any petition is ever filed or an election is set.”

Motion for Summary Judgment

In a Feb. 4, 2014, motion for summary judgment and memorandum in support, SHRM, the U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, the National Association of Manufacturers and the National Retail Federation asserted that the ambush election rule makes sweeping changes that “impermissibly limit the right of all parties to engage in protected speech at precisely the time when their free speech rights are most important.”

In addition, they stated that the rule “sharply curtails the statutorily mandated pre-election review of issues critical to the election process—as well as limits the taking of evidence necessary for meaningful post-election review.”

They added that “Even if the board’s choices were permissible under the National Labor Relations Act, which they are not, they are invalid under the Administrative Procedure Act. The administrative record demonstrates a gaping disconnect between the problem the board purported to address and the solution it adopted. The vast majority of elections go forward with no ‘delay’ at all—and the final rule does not even identify, much less eliminate the reasons responsible for those few cases that have excessive delays.

“Although the board’s goal of eliminating ‘unnecessary’ litigation may be laudable, the available evidence demonstrates that the final rule will have the opposite effect. And the board declined to adopt—without a reasoned explanation—common sense protections against the invasion of employee privacy threatened by new mandatory disclosures of personal information.”

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

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