By Edwin S. Hopson
On March 5, 2014, the House Committee on Education and the Workforce conducted a hearing entitled, “Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule.” During the hearing, chaired by Representative John Kline (R-MN), some members of the committee claimed that the recently proposed changes to union representation election rules by the National Labor Relations Board would undermine long-standing rights of workers, employers, and unions.
In opening remarks, Kline stated, in part: “For many of my colleagues, this hearing might evoke a sense of déjà vu. Not too long ago we debated a nearly identical ambush election rule proposed by the National Labor Relations Board that would stifle employers’ free speech and cripple workers’ free choice. In 2011 the House passed with bipartisan support a bill that would have protected the rights of workers, employers, and unions by reining in this radical proposal.”
The rule changes were first proposed in 2011, but were struck down by a federal judge on procedural grounds. They were then revived last month. According to Kline, the NLRB’s proposed rule changes would (1) significantly shorten the time between the filing of a union election petition and the actual election, (2) provide employers just 7 days to find legal counsel and prepare for a representation election hearing before the NLRB, (3) force employers to raise all issues before the hearing or lose the right to raise those issues during the hearing; and (4) delay answers to important legal questions until after employees have voted. Additionally, Kline claimed that the proposed rule changes would jeopardize workers’ privacy by divulging sensitive information, such as email addresses, to union organizers.
One witness, Doreen Davis, an attorney, stated at the hearing, in part: “The NLRB’s proposed rule changes are in excess of the board’s rulemaking authority, are substantively unnecessary, and are contrary to the [National Labor Relations Act]. Moreover, the proposed rules evidence poor public policy and are likely to exacerbate, rather than alleviate, labor tension between employers and employees.”
Another witness, Steven Browne, a director of human resources for a business operating pizzeria restaurants, opined that the NLRB’s proposed rules “will fundamentally and needlessly alter the delicate balance that exists in current law that provides for the opportunity for an employee to make an educated and informed decision to form, join or refrain from joining a labor organization. If adopted the proposed regulation would severely hamper an employer’s right to exercise free speech during union organizing campaigns and cripple the ability of employees to learn the employer’s perspective on the impact of collective bargaining on the workplace. Finally and equally troubling is that the NLRB is proposing this regulation absent any evidence that it is needed.”
Kline indicated that during the week of March 10, he and Representative Roe will be meeting with NLRB Chairman Pearce to discuss their concerns about the proposed changes to the representation election rules. Kline stated in the committee’s press release, “[i]f there are opportunities to work together to streamline the election process, like filing documents electronically, we are more than eager to help achieve a reasonable goal. However, if he is determined to ram through the regulatory process a rule that will harm protections enjoyed by workers, employers, and unions, then this committee will do what’s necessary and stand by those we are elected to serve.”