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Revived rule for union elections violates privacy, disrupts business

Several months ago, the National Labor Relations Board, in an effort to enact sweeping policy changes that will harm employers, employees and job growth, resurrected their previously issued “ambush” election rule.

The rule, originally issued in 2011, was challenged by the Coalition for a Democratic Workplace – led by the Association of Builders and Contractors – in conjunction with the U.S. Chamber of Commerce because the NLRB passed the rule without a full board in place.

The U.S. Court of Appeals for the D.C. Circuit agreed.

In December, the NLRB dropped its appeal and withdrew the rule. But the rule was only withdrawn so it could be reissued under the fully confirmed, five-member board that was seated last year. And given the board’s current political tilt, the rule will most likely be finalized by the end of the year.


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The public’s opportunity to comment on the board’s proposal ended in early April, and a hearing was held in Washington, D.C., shortly thereafter. Associated Builders and Contractors participated in both and asked that the rule be withdrawn immediately.

The rule will require employers to hand over employees’ phone numbers and email addresses to union organizers – without the employees’ permission – and limit employers’ ability to communicate with employees prior to a union election.

This rule encourages union intimidation, and will severely hamstring job growth.

The construction industry, an industry that was severely impaired in the recession here in New Mexico, will be hurt the most by this unfair rule.

Since winning the election in 2008, President Obama has preoccupied himself with rewarding his friends in Big Labor as opposed to sending a message to job creators in the construction industry that they have a friend in the White House.

Extremely concerning is the proposed shortening of the period between filing a union petition and the NLRB’s pre-election hearing. The new seven-day time limit is not long enough for most construction contractors to obtain counsel or to produce a legally binding pre-hearing statement of position on the hearing’s issues.

Secondly, the board’s “appropriate unit” rules for the construction industry are complex. Most contractors faced with their first union elections have no idea what these rules are, and board pre-hearing notices will never bring contractors sufficiently up to speed before the hearing.

The board’s proposal fails to take into account that more time is needed to get the facts and the law straight.


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Third, the board has special voter eligibility rules for the construction industry that require laid-off workers to be included in voter eligibility lists. The board’s proposal to reduce the time frame in which employers must provide detailed voter eligibility lists makes employer compliance difficult, if not impossible.

Construction companies employ a larger number of working foremen on their job sites compared to other industries, and it is not always clear whether these foremen are considered to be “supervisors” in the eyes of the NLRB. Deferring supervisory issues beyond the pre-election stage, as the proposed rule contemplates, would cause severe disruption and confusion on construction job sites.

Finally, election procedures promulgated by the board should be consistent with the intent of Congress by requiring a reasonable minimum length of time for any election campaign, in order to make sure that employers have an opportunity to communicate with employees before the election is held. The proposed rule would shorten the process so much that employees will not get the information they need and are entitled to before a vote.

This proposal is outrageous.

Not only is this proposal unfair to employers and their employees, it is unnecessary. Unions already win in 64 percent of NLRB elections, which are carried out in a median time frame of 38 days.

The proposed rule undermines an employer’s free speech and due process rights and will destroy an employee’s rights to make an informed decision about union representation while violating their privacy.