On the day the National Labor Relations Board’s contentious “ambush” election rule took effect, members of the House and Senate introduced bills to preserve elements of the previous and long-standing representation election process.
The Workforce Democracy and Fairness Act, introduced in the House by Education and the Workforce Committee Chairman John Kline (R-MN) and in the Senate by Health, Education, Labor, and Pensions Committee Chairman Lamar Alexander (R-TN), would stipulate that union elections could not be held any sooner than 35 days after the petition is filed; provide employers with at least two weeks to prepare their statement of position and permit them to raise additional issues throughout the pre-election hearing; and require the Board to determine the appropriate bargaining unit before the union is certified, and address any other issues of voter eligibility. Senate Employment and Workplace Safety Subcommittee Chairman Johnny Isakson (R-GA), and House Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-TN) co-sponsored the legislation.
A second measure also introduced on April 14, 2015, the Employee Privacy Protection Act, would give employers seven days in which to provide a list of employee names to the union (the Excelsior list), and allow employees to choose an additional piece of contact information (email, telephone number, etc.) the employer would have to disclose as part of the process. The new rule expands the types of employee information that must be handed over, and does not allow an employee to opt out of providing such information. More information on both measures can be found here.
Neither bill has a realistic chance of survival in this political climate. A prior legislative attempt to prevent the rule from taking effect was vetoed by the President on March 31, 2015. While lawsuits have been filed to rescind the election rule, any resolution will necessarily follow the rule’s effective date. Although the NLRB’s General Counsel issued guidance in advance of the rule’s implementation, employers are likely to face several challenges in complying with the new procedural requirements.