NLRB Seeks Speakers for Public Meeting on Ambush Election Rules

By Kara M. Maciel

Today, EBG client, National Grocers Association (“NGA”), filed a request to speak at the National Labor Relations Board’s public meeting, scheduled for April 10-11, 2014 regarding the Notice of Proposed Rulemaking (“NPRM”) on the “ambush election” representation procedures.

NGA is the national trade association representing retail and wholesale grocers that comprise the independent sector of the food distribution industry.  NGA requested to speak on 4 key issues being contemplated by the NLRB:

1. Timing of the Election.  NGA opposes any reduction in the scheduling of the election because hasty decisions don’t make good decisions.  Free speech is the cornerstone of the Act’s statutory protections, and the NPRM eviscerates an employee’s opportunity to become fully informed.  Instead of deliberately evaluating all relevant information, employees will be rushed into voting without a full opportunity to receive facts, contemplate the consequence of their decision, and make an informed choice whether to be represented by a union.  By the filing of a petition, a union has had ample time to have convinced 30% of the proposed unit to sign cards; how can the other 70% be expected to make an informed decision in a few days?  Employees faced with making such an important workplace decision should be able to do so in an environment conducive to reflection and thought, not one that sacrifices deliberation for speed.  The NPRM forces employees to act in haste and repent at leisure.  There is no legitimate analysis supporting a need to hasten the time before an election and certainly nothing supported by empirical evidence from the Board, especially when its own data confirms that the median time between a petition and election was 38 days.
2. Compulsory Disclosure of Private Email and Phone Numbers.  NGA is concerned about the NPRM’s proposal of compulsory disclosure on voter lists to include personal and confidential e-mail accounts and phone numbers.  This non-consensual disclosure constitutes a gross invasion of employees’ privacy.  To require employers to collect that information after the direction of an election and share it with third parties without any safeguards on how that information is handled would be unduly burdensome and intrude on employees’ privacy rights.  At a minimum, employees must be allowed to opt-in to share private information with outsiders.  Only with their specific consent can the Board not place at risk the privacy interests of workers. Even more disconcerting to employees’ privacy interests is how the information could be used.  It is not inconceivable that individual organizers could abuse this information, causing irreparable harm to employees.  As security breaches become widespread with identify theft as the fastest growing white collar crime, companies must be ever vigilant in protecting their employee’s personal information.  There are no safeguards contemplated by the NPRM to protect against unforeseen abuses with this private information.  Identity theft, harassment or other abuse of personal information can happen without the union’s knowledge, and there is no mechanism for the Board or anyone else to effectively sanction individuals against misuse.  Disclosing private email and phone numbers to labor unions within 2 days after direction of an election does not further the Act’s statutory purposes.
3. Changes to Litigated Issued During Pre-Election Hearing.  There are due process problems contemplated by the NPRM’s changes to the litigated issues during the pre-election hearing.  The heart of a representation petition is whether there is a question concerning representation.  The Board must determine if 30% of the unit has made a showing of interest, and the Board cannot fulfill this statutory function without knowing the unit’s composition.  To direct an election when disputes exist over voter eligibility of less than 20 percent of the unit would create vast uncertainty and confusion.  Ultimately, an election would occur that conceivably could include supervisors, who are statutorily excluded.  If the individuals in dispute did not reach the 20 percent threshold, and the union won, the result would find supervisors represented by a labor union.  How can employees make an informed decision about representation when they are confused about who else will be in the unit?  The prejudice created by postponing voter eligibility challenges until post-election is akin to a litigant not being able to disqualify a juror until after the verdict is rendered.  The NPRM fails to consider the potential impact that the Board’s ruling in Specialty Healthcare will have on determining who should be included or excluded from a petitioned-for unit, and creates more questions than answers for employers and confusion during the election process as to who is eligible to vote.
4. Waiver of Issues at Pre-Election Hearing.  One of the main changes contemplated by the Board would require the parties to raise every possible argument at the initial election hearing, or risk waiving those arguments.  Accordingly, within days of the union filing a petition, the employer must get a handle on the organizing drive, including who is being proposed to be included in the unit (and whether such a unit is proper) and make an informed decision as to what issues to raise at the hearing, just a few days later.  Small business owners are not armed with legal staff and it would necessarily take time to locate, retain and consult appropriate labor counsel on the significant business and operational issues posed by the union’s petition.  By requiring employers to put everything in a statement of position at a pre-election hearing or be subject to a waiver increases the adversarial nature of the proceeding and makes it even less likely that the parties will resolve disputes early in the process.  Fearing that they may waive issues not set forth in writing, employers may be less inclined to enter into stipulated or consented to elections.    Accordingly, employers should be able to supplement or amend their statement of position as facts and the election process develops.

Management Missives

As previously reported, it is with intention that the Board’s proposed rules will significantly alter the entire union representation election process in favor of unions. Although it is a proposed rule at this point, and the Board will be accepting public comment through April 7, 2014, with a public hearing that same week, it is likely that the final rule will be issued not long thereafter. To prepare for the Board’s “ambush” election rules, employers should promptly adopt any or all of the following strategies:

• Examine your workforce for potential vulnerability to union organizing, including wage and hour violations or uncompetitive wages or benefits.
• Review and update workplace policies that become relevant during union organizing such as solicitation/distribution, electronic communications, and social media.
• Assess your workforce for potential bargaining unit issues like identifying who are supervisors and which employees share a “community of interest.”
• Train your managers and supervisors on recognizing early warning signs of union organizing and responding lawfully to union campaigns.
• Contact legal counsel with any questions or for any assistance with ensuring you are prepared to respond to an organizing campaign consistent with the proposed rules.