Employer Alert Regarding Two Federal Proposed Union Election Rule Changes

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The National Labor Relations Board (NLRB) recently issued a proposed rule changing the Board’s procedure for union election campaigns. The proposal shortens the time frame for union election campaigns and makes other changes to the unionization process.

The proposed rule contains a number of provisions of concern including:
  • Shortened Timeframe. Because unions can prepare their entire unionization campaign before making it public, shortening the time between filing and the election creates a disadvantage for employers. Unless employers have adequate time to prepare their educational materials, employees will not have full information about the prosand cons of unionization. In addition, the NLRB has not shown why the current timeframe (median of 38 days) needs to be shortened.
  • Changes to the Statement of Position. The proposal requires employers to disclose their entire case theory in this document and precludes employers from presenting evidence on any issue that the employer fails to include in the Statement. This preclusion raises due process issues for employers and is likely to increase litigation.
  • Mandated Disclosure of Employee Information. Under the rule, employers are required to turn over private employee information, including employee telephone numbers and e-mail addresses. The rule does not specify whether these are home or work contact information or both. This is an invasion of employee privacy and an invitation to distract employees during the workday.
  • Deferral of Representational Disputes. The proposed rule, under certain circumstances, defers litigation of representational disputes, such as the eligibility of voters, until after the election is held.
This NLRB proposal is the most recent action government entities have taken seeking to make unionization easier. Comments in opposition to this rule change should be sent to the NLRB no later than August 22, 2011.

It is important to note that the U.S. Department of Labor (DOL) has also issued a proposal that would expand the public disclosure rules to require that employers report virtually all services regarding labor relations and union organizing. Taken together, the DOL and NLRB rules will severely inhibit employer free speech and have the effect of preventing employees from hearing both sides of the unionization debate. The comment period for the DOL rule was recently extended until September 21, 2011.

Employers, business owners and trade associations alike should take a few minutes to write to both the National Labor Relations Board and the Department of Labor and provide a strong, unified voice opposing these two rule changes.

Hedley Lawson, Contributing Editor