The Fight over the NLRB’s Ambush Rule

The National Labor Relations Board (NLRB) issued a final rule amending its union representation procedures to speed up the process between when a union files a representation petition and an election takes place. The rule takes effect April 14, 2015.

The “Ambush Rule”

According to the NLRB, this rule is designed to “remove unnecessary barriers to the fair and expeditious resolution of representation questions.” However, the National Law Review claims the rule:

“…eliminates pre-election evidentiary hearings and requests for review…and expands the personal information relating to employees which employers are required to disclose to unions in voter eligibility lists – the Board will require that telephone numbers, including mobile phone numbers, and email addresses-if available, be included along with employees’ names and addresses, the employee’s work location, shift, and classification.”

Opposition to the Rule

The National Federation of Independent Business, Associated Builders and Contractors, the U.S. Chamber of Commerce, Coalition for a Democratic Workplace and several other groups are challenging the NLRB on this new rule, saying it violates the National Labor Relations Act (NLRA) by taking away an employer’s right to explain the effect of unionizing to employees and brings up privacy concerns.

Oftentimes employers aren’t aware of union organizing activities within their organization until a petition is filed, and, up until that point, the only information they may have received about union representation is from the union itself. The new rule shortens the time employers have to react and provide their own information to employees.

The NLRA allows employers to discuss its feelings about unions with employees, but it does not allow employers to retaliate against employees who support union representation.

The U.S. Senate voted to overturn this federal regulation in favor of a resolution of disapproval, the House is expected to follow suit. However, President Obama has said he will protect the NLRB rule and veto the resolution.

What Does This Mean for Employers?

The law firm of Stoel Rives LLP suggests that employers take a proactive training and communication approach to inform employees about how unionization affects the workplace.

  1. Train managers and supervisors on recognizing the signs of union organizing before the petition is filed. This is an opportunity to keep supervisors involved and engaged so they know how to monitor, report, and legally respond to union activity.
  2. Engage employees in positive communications about the company, its competitive wage and benefit package, its open door policy, and how employees can access management to learn about what’s happening in the company and openly share what they are thinking without an intermediary.
  3. Prepare campaign information materials ahead of time so that they are ready to go when they are need.
  4. Review whether the existing email policy needs to be changed. (Union contract provisions that restrict employee use of company email may no longer be valid.)
  5. Ensure that other necessary policies are in place and up to date, including non-solicitation, social media, and open door/issue resolution policy.

What is a Resolution of Disapproval?

The Congressional Review Act (CRA) was enacted in 1996 as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA). Before a final rule can take effect under this act, the issuing agency must submit a copy of the rule, a statement summarizing the rule, the purpose of the rule, and its proposed effective date to Congress.

Expedited legislative procedures have been established by the CRA for Congress to review regulations issued by federal agencies and, by passing a joint resolution, to overturn a regulation. The resolution of disapproval must be signed by the President, or must be passed over the President’s veto by two-thirds of both the House and Senate.

What are the NLRA and the NLRB?

The National Labor Relations Act (NLRA) protects the rights of private sector employees to organize into trade unions, to engage in collective bargaining, and to take collective action including strike if necessary. The act also created the National Labor Relations Board (NLRB), which is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.

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