In the midst of a four-year fight, on April 14, the National Labor Relations Board’s (NLRB) Ambush Election Rule took full force and effect. The rule will allow organizers to hold a union election within 14 days of filing the petition with the NLRB, and it will force clubs to provide employee personal telephone numbers and personal e-mail addresses to union organizers. This hampers clubs’ ability to adequately prepare themselves and their employees for union elections. Should a club receive notice of a union organizing campaign, it should immediately hire labor counsel dealing with management issues to prepare its defense.
As you know, the new rule has been implemented despite opposition from NCA and our ally, the Coalition for a Democratic Workplace (CDW) and votes by the House and Senate against it by margins of 232-186 and 53-46 respectively. President Obama vetoed Congress back in March.
What can still be done?
The fight is not completely over though. In fact, there are still several measures that can be taken to kill the rule. NCA with CDW has filed two lawsuits, one in a federal district court in the District of Columbia and one in a federal court in Texas, challenging the rule. NCA and the CDW’s complaint alleges that the rule impedes employees’ rights to get full information about the union proposing to represent those employees (as required under the National Labor Relations Act) and that it tramples employers’ free speech and due process rights.
Unfortunately, the D.C. federal court judge recently ruled in favor of the NLRB, which hurts the chances of the Texas court ruling in favor of clubs, though it is still possible.
While it appears the judicial branch may not side with clubs, the legislative branch is still on our side. Two strong allies of the club industry have already taken additional action to help stop the rule. Recently, Senate Health, Education, Labor and Pensions (HELP) Committee Chairman Lamar Alexander (R-Tenn.) introduced the Workforce Democracy and Fairness Act. His bill would prohibit a union election from taking place any sooner than 35 days after an election request is filed. In addition, House Education and the Workforce Chairman John Kline (R-Minn.) introduced the House version of that same bill.
In addition, Rep. Phil Roe (R-Tenn.) has also introduced the Employee Privacy Protection Act. His bill will enable employees to decide how a union organizer may contact them. Under the Ambush Election Rule, club GMs must give union organizers their employees’ names, addresses, phone numbers and e-mail addresses—a major invasion of your employees’ privacy.
Together, these bills will put employees first rather than unions, but the president does not see it that way. President Obama is expected to veto these bills if they make it to his desk. If all else fails, the next avenue is to add a rider to the FY16 funding bill prohibiting the NLRB from using federal funds to enforce the rule.
Regardless, as the Ambush Election Rule goes into effect, please be aware of its provisions:
- All pre-election hearings must begin within eight (8) days after a hearing notice is issued;
- Employers must file a “Statement of Position” by noon on the day before the hearing. The Statement of Position must include a list of prospective voters with their names, job classifications, work shifts, and work locations;
- NLRB Regional Directors are now given the discretion to limit the scope of pre-election hearings;
- They may now exclude evidence on voter eligibility and delay ruling on who is entitled to vote in the union election until after the election; and
- Within two (2) business days of the election agreement or decision directing an election an employer must provide employee personal telephone numbers and personal e-mail addresses to union organizers.
To assist employers who might be subjected to a union organizing campaign, the NLRB has provided details on the rule on its website here.
NCA and the CDW will continue to work with leaders on the Hill to stop this rule.