SHRM to NLRB: Rescind or Modify ‘Ambush’ Election Rule

Attempt to keep up with technology may invade workers’ privacy

Allen Smith, J.D. By Allen Smith, J.D. April 20, 2018
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​The "ambush" election rule, which took effect three years ago under the Obama administration, invades workers' privacy, unfairly burdens employers, and should be rescinded or modified, according to the Society for Human Resource Management (SHRM).

The National Labor Relations Board's (NLRB's) rule sped up the union campaign period by limiting employers' objections before an election to who may vote. Supervisors may not vote in an election, but who is a bona fide supervisor isn't always clear. The rule also required employers to quickly file a position statement with the board.

In April 18 comments to the NLRB, SHRM noted that the rule's "unwarranted focus on speed comes at a significant cost to the impartial union election process envisioned by Congress" and impedes employers' ability to discuss the pros and cons of union representation. SHRM's comments are in response to the board's December request for information on the ambush election rule—an indication that the board is considering withdrawing it.

The board's rule has reduced the union campaign period from 37 days to 23 days, SHRM noted, saying that the NLRB has offered "no policy reason as to why this time frame is optimal or beneficial to all stakeholders." A 2015 Labor Relations Institute study showed that the union win rate is near 90 percent if the election occurs over two weeks or less.

SHRM said that the ambush election rule:

  • Violates employees' privacy by requiring the involuntary disclosure of their confidential workplace and contact information, including e-mail address.
  • Creates a new, burdensome requirement that employers provide a position statement within seven days of the board's notice of petition for election. The rule's requirements interfere with employers' ability to communicate with workers about unionization by bogging businesses down in technical requirements, SHRM noted.
  • Automatically sets the hearing date eight days after the notice of the hearing before analyzing the complexity of the issues. Peter Robb, NLRB general counsel, has proposed 12 days, Bloomberg reports.
  • Doesn't permit the resolution of bargaining unit eligibility disputes prior to the election, sometimes resulting in lengthier challenges after the election and before certification of the union by the board.

Modernized Procedures

The Service Employees International Union (SEIU) said in its comments that the election rule, which was adopted Dec. 15, 2014, "modernized procedures to keep pace with technology and the contemporary workforce."

Many things could be modernized at the NLRB, but "the one thing that worked well before was the election process," said Phillip Wilson, president and general counsel with the Labor Relations Institute in Broken Arrow, Okla. "I hope we'll go back to the process where everybody knows whether their vote counts."

Privacy Concerns

Prior to the adoption of the ambush election rule, employers had to provide the names and home addresses of employees eligible to vote in the election to the NLRB regional director within seven days after the NLRB orders an election.

Employees weren't uniformly in favor of these requirements. An HR professional who spoke anonymously said employees at her business "were very mad that the union was showing up at their homes to sign cards and then during the campaign to encourage them to vote for the union." The employer explained that up until the time that the union petition was filed, the company had not released private information and that co-workers responsible for organizing the drive must have disclosed it.

The ambush rule "dramatically expanded the nature and quantity of employee information that employers must provide to regional directors and the parties to the representation case," SHRM noted. Employers had to provide employees' personal e-mail addresses, home phone numbers, personal cellphone numbers, work locations, work shifts and job classifications in two, rather than seven, days.

The board justified this change by citing the development of new technology. But SHRM said, "Just because technology improves does not mean the board must, or even may, allow unions to contact employees in every conceivable medium."

Moreover, employers may not keep required employee information in the same database.

Position Statement

In the position statement, employers have seven days to address a host of topics, such as:

  • Appropriate unit and eligibility issues.
  • Multifacility and multiemployer unit scope.
  • Whether there are any professional employees in the unit.

Any issues not raised in the position statement are waived. That's unlike in a court of law, where amended complaints are permitted, Wilson noted.

Seven days isn't enough time to answer the complex questions that must be addressed in a position statement, SHRM said.

Position statements "are often hasty efforts and may include mistakes" that may lead to disputes later in the process, undermining the ambush rule's focus on speed, it added.

Unions, by contrast, have to complete only a one-page petition. Unions, but not employers, may raise issues at the representation hearing that they did not raise in their prehearing paperwork, giving them a procedural advantage, SHRM stated.

Reduced Chance to Pressure Employees

The SEIU said that under the old election procedures, "employers had ample opportunity to manipulate the election process, greatly delay the election date and extend the time for employers to commit unfair labor practices and intimidate workers."

It noted a 1983 study published in the Harvard Law Review (Promises to Keep: Securing Workers' Rights to Self-Organization Under the NLRA [National Labor Relations Act]), which found that the probability of unionization drops by more than 2 percent for each week of delay between the union petition and the vote.

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

Request for Information Welcome

Nancy Hammer, SHRM senior government affairs policy counsel, said that the NLRB's request for information "is an important first step in evaluating the 2014 election rule changes. From SHRM's perspective, the revised rules have not yielded any benefit to the process. Instead, they prioritized speed at the expense of adequate time for communication between employers and employees about the merits of both sides of the unionization discussion."

SHRM's comments were filed with the Council on Labor Law Equality.

 

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