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The House of Representatives on March 19, 2015, sent the president a firm message, voting to block the National Labor Relations Board’s (NLRB's) so-called ambush election rule by a vote of 232 to 186. But due to the likely event of a veto, employers should prepare to comply with the rule, according to a management attorney.
The Society for Human Resource Management (SHRM) supported S. J. Res. 8, a joint resolution of disapproval to block the rule, which
passed the Senate March 4, 2015. SHRM also has
joined a lawsuit challenging the NLRB ambush election rulemaking.
Mark Schneider, co-chair of Littler’s traditional labor practice group in Minneapolis, called the House’s vote “symbolic,” noting that the president will probably veto the joint resolution and that there likely aren’t enough votes to override a veto.
If that prediction is accurate and the lawsuit isn’t able to prevent the rule from taking effect, it will become effective April 14.
Schneider recommended that employers prepare for the rule to take effect, saying they “will need to take a look at their attitudes and communications” and will need to consider unionization “more at the front end.”
He said, “It’s important for employers to be prepared, analyze their workforce and train supervisors on issue identification and getting the corporate message out” to ensure that businesses will be able to fully exercise their free speech rights.
Ken Yerkes, an attorney with Barnes & Thornburg in Indianapolis, agreed that there aren’t enough votes for an override. But he said by sending the legislation to the president Congress is making him more personally responsible for the NLRB’s actions and will make the rule a campaign issue.
Speed and Privacy Concerns
SHRM President and Chief Executive Officer Henry G. Jackson, CPA, wrote a March 16, 2015, letter to the House, encouraging it to pass the resolution. “The representation election rule is commonly referred to as the ‘ambush’ election rule because of its focus on speeding up the union election process at the expense of employees and employers, who will have insufficient time to understand and address the relevant issues about the impact of unionization,” Jackson stated. “SHRM has long supported the fundamental right, guaranteed by the National Labor Relations Act (NLRA), of every employee to make an informed, private choice about whether or not to join a union. While estimates vary, elections could occur in as little as 11 days after the employer is notified of an election petition.
“In addition, the rule severely limits an employer’s ability to challenge aspects of the process prior to the election, thereby promoting speed of elections over all other goals and requirements of the NLRA. At issue is the opportunity for a full and informed debate before an election is held,” he said.
Jackson added, “SHRM is particularly troubled by the rule’s mandate that employers provide their employees’ personal phone numbers and e-mail addresses to labor organizations. HR professionals, who are tasked with protecting employee privacy and personal information, have expressed grave concern throughout the rulemaking process about providing this information to organized labor.”
In a statement of administration policy, the executive office of the president in the Office of Management and Budget (OMB) said, “The board’s modest reforms will help simplify and streamline private-sector union elections, thereby reducing delays before workers can have a free and fair vote on whether or not to form or join a union. … The rule allows for electronic filing and transmission of documents, ensures that all parties receive timely information necessary to participate in the election process, reduces delays caused by frivolous litigation, unifies procedures across the country, requires additional contact information be included in voter lists, and consolidates appeals to the board into a single process.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him
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