Senate Committee Holds Hearing on ‘Ambush Elections’ Rule

Hearing examined NLRB rule that would speed up union elections and potentially harm small businesses.

February 13, 2015

WASHINGTON – This week the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing examining the so-called “ambush Elections” rule recently finalized by the National Labor Relations Board (NLRB) that would revise the procedures governing union representation elections in a manner that favors unions. 

Specifically, under the rule most litigation over union eligibility issues would be delayed until after workers vote on whether to join a union. The rule would also eliminate a previously required 25-day period between the time an election is ordered and the election itself, and require employers to provide union organizers the email addresses and phone numbers of workers who are eligible to vote in a union election.   

The rule is currently scheduled to take effect on April 14, 2015. Business groups including the U.S. Chamber of Commerce, National Federation of Independent Business and National Retail Federation have filed lawsuits challenging the rule, which may delay the rule’s effective date. If the rule takes effect, employee efforts to unionize could be expedited to as few as 11 days after an election petition is filed. The rule is strongly supported by labor unions and opposed by most business groups. 

Wednesday’s hearing, “Ambushed: How the NLRB’s New Election Rule Harms Employers & Employees,” examined the NLRB’s rule and its potential effects on both employers and employees. HELP Committee Chairman Lamar Alexander (R-TN) called the rule “a solution in search of a problem,” saying the current procedures produce an election in a sufficient timely fashion. The median time from petition to election is 38 days, according to the latest NLRB data, and almost 95% of elections occurred within 56 days. Alexander expressed concern that the updated rule could jeopardize employers’ ability to effectively communicate with their employees regarding their decision to collectively bargain. 

Multiple Republican members commented that NLRB’s rule would “tilt the playing field” in favor of unions and could harm small businesses. Alexander also highlighted privacy concerns with the new rule, noting that it requires employers to share employees’ personal information to enable union organizers to communicate with prospective voters. Democratic members of the committee were supportive of the NLRB’s efforts at Wednesday’s hearing, defending employees’ rights to organize and suggesting that opposition to the rule is misguided and overstated. 

Both the Senate and House are currently planning to overturn the NLRB’s rule under the Congressional Review Act (CRA), although this effort is unlikely to come to fruition. Under the CRA, Congress can utilize an expedited “fast-track” procedure to overturn an agency’s rulemaking with a simple majority vote (thereby avoiding a filibuster in the Senate). However, if President Obama vetoed the measure – which he would very likely do – Congress would need to override the veto with a supermajority in both chambers. There are not sufficient votes to override the veto. 

NACS will continue to share relevant developments on this issue. 

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