SHRM NLRB Action Alert: Submit Comments to NLRB on Proposed Rule for Revised Election Procedures

The National Labor Relations Board (NLRB or "Board") recently re-proposed an expansive rule changing the Board’s procedures for union election campaigns. The rule was first proposed in 2011 but was challenged in court, and the court ultimately ruled that the Board used improper procedures in adopting the rule and halted its implementation. Despite robust public input in response to the previous rule, with the Board receiving 65,958 written comments including many from SHRM members expressing their concerns, the current proposed rule is essentially the same as the 2011 version.

The proposed rule contains a number of provisions of concern, including:

• Shortened Timeframe. The proposed rule significantly shortens the time period from when the union's petition is filed until the election, moving from the current 30- to 47-day average timeframe to as short a time period as 10 to 11 days. 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 pros and cons of unionization. In addition, the NLRB has not shown why the current timeframe 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 this requirement refers to home or work contact information or both. This provision raises concerns about violation of employee privacy.

The reissuance of this rule provides SHRM and SHRM members with another opportunity to express concerns to the Board by submitting comments by COB on Monday, April 7, 2014.

SHRM Activity on the NLRB Rule

On March 5, SHRM’s North Central Membership Advisory Council (MAC) representative Steve Browne, SPHR, testified on behalf of the Society before the U.S. House Committee on Education and the Workforce about SHRM’s concerns with the NLRB’s February 6 Notice of Proposed Rulemaking governing representation elections. SHRM plans to submit comments to the NLRB before the due date of Monday, April 7, 2014.

SHRM will also participate in an NLRB public meeting on this proposal on April 10 and 11, 2014. Roger King of Jones Day will testify on behalf of SHRM.

Legislative Outlook

Legislation has been introduced in the current Congress in response to the NLRB rule. The “Workforce Democracy and Fairness Act” (S. 2178 and H.R. 4320) has been introduced by Senator Lamar Alexander (R-TN) and Congressman John Kline (R-MN), respectively. SHRM’s Government Affairs Department will soon provide the membership more information regarding congressional advocacy efforts planned. In the meantime, we encourage all concerned SHRM members to make their voices heard on this issue by submitting comments to the NLRB following the directions below.

Submit Your Comments to the NLRB by April 7, 2014

Submit your comments by clicking HERE to access the Regulations.gov website. On this website, you should type your information into the form provided, copy and paste the suggested comments below into the box on the right, and click the SUBMIT button to file your comment with the NLRB. Please feel free to edit and revise the proposed text (below) to incorporate your own thoughts and experience.

Suggested Comment Language

Mr. Gary Shinners
Executive Secretary
National Labor Relations Board
1099 14th Street NW
Washington, DC 20570

Re: Proposed Rule Governing Representation Case Procedures; Docket ID No. NLRB-2011-0002

Dear Mr. Shinners:

I am writing to share my concerns about the National Labor Relations Board’s (“NLRB” or “Board”) proposal to change its process for union representation. As an HR professional and member of the Society for Human Resource Management (SHRM), I do not believe that the Board has properly established the need for changes to the election rules.

Currently, the average time for a representation election for all petitions filed is 31 days. Even contested and other types of decisions have been issued well within the timeframe goals established by the General Counsel, making wholesale changes in the rule unjustifiable. I am very concerned that the proposed changes will improperly interfere with an employer's ability to communicate with and provide information to employees regarding a union representation campaign and that employees will not have adequate time to make an informed decision.

The proposed rule does not properly balance the rights of employees, employers and labor unions in the pre-election period, and the shortened timeframe deprives employers of their due process rights under the National Labor Relations Act. For example, under the proposal, expedited elections could be conducted before a hearing is held regarding critical questions such as who is actually eligible to vote. In addition, the proposal would require that employers turn over employee telephone numbers and e-mail addresses but does not make clear whether this requirement refers to home or work contact information. I am concerned about the invasion of employee privacy and workplace implications of this new requirement.

I believe that this proposed rule, as drafted, will improperly interfere with the communication between employers and employees. For this reason, coupled with a lack of justification of the rule's necessity, I respectfully request that the rule be withdrawn.