GOP Senators Oppose NLRB Ambush Elections Rule

Washington, D.C., April 7 – A group of 18 Republican senators today submitted comments opposing the National Labor Relations Board’s proposed rule to speed up workplace union elections, which “poses significant harm to businesses and workers alike in the United States.”

The senators write that the rule is essentially a reissuance of one proposed by the board in June 2011, implemented in part in April 2012, and “subsequently invalidated by a federal court.” Despite 65,000 comments submitted on the June 2011 rule, today’s proposed ambush election rule “fails to reflect any consideration of the multitude and magnitude of concerns already raised.”

“We are deeply concerned that the Board is intent on ignoring both the voice of Congress, as articulated in the [National Labor Relations Act], and the voice of the public in this rulemaking process,” they write.

The proposed rule will speed up elections—now a median 38 days—to take place as quickly as 10 days after a petition for representation has been filed with the NLRB. “The proposed rule will impact the ability of employees to make a well-informed choice because the obvious effect of the [rule] is to limit the ability of an employer to communicate with its employees regarding an upcoming election,” the senators write.

The Senators noted that when Congress debated amending the National Labor Relations Act in 1959, “then-Senator John F. Kennedy stated that it was essential to allow ‘at least a 30-day interval between the request for an election and the hold of an election’ in order to ‘safeguard against rushing employees into an election where they are unfamiliar with the issues.’”

The proposed rule also “infringes on an employer’s due process rights,” the senators write, noting that within seven days of the petition being filed, employers must prepare for a pre-election hearing and submit any challenges or concerns with the appropriateness of the election.  If they don’t raise the issue then, the rule prohibits them from raising it later. Unions face no similar restriction.

The labor board’s proposed rule also deviates sharply from current requirements—under which employers must disclose employee names and addresses to the board and to the union—and forces the disclosure of employee telephone numbers, email addresses, work location and shift information and worker classification.  “The NPRM’s required disclosure is invasive of employee privacy rights and opens the door to harassment,” the senators write.

The senators write that the proposed ambush elections rule is “the latest effort by an administrative agency to alter established practices in favor of organized labor and against employers.”

“The Board’s [proposed rule] poses significant harm to businesses and workers alike in the United States.  The threat to small businesses, the engine of our economic growth, is particularly profound.  Many employers, especially small employers, are ill-equipped to respond to a union election petition as quickly as the [proposed rule] would require, giving rise to due process issues for employers and uniformed employee voters in gerrymandered units controlled by the petitioning union.”

The letter was signed by Senators Lamar Alexander (R-Tenn.), Senate Republican Leader Mitch McConnell (R-Ky.), Mike Enzi (R-Wyo.), Pat Roberts (R-Kan.), Johnny Isakson (R-Ga.), Orrin Hatch (R-Utah), Richard Burr (R-N.C.), Mark Kirk (R-Ill.), Tim Scott (R-S.C.), Saxby Chambliss (R-Ga.), Marco Rubio (R-Fla.), Tom Coburn (R-Okla.), Mike Lee (R-Utah), Lindsey Graham (R-S.C.), James Inhofe (R-Okla.), John McCain (R-Ariz.), John Barrasso (R-Wyo.), and John Thune (R-S.D.).

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