AGC Urges NLRB to Withdraw “Quickie Election” Rule
August 23, 2011

The National Labor Relations Board (NLRB or Board) should withdraw a proposed rule to amend procedures in union representation cases, AGC argued in comments submitted yesterday.  AGC submitted the independent comments in addition to signing onto comments submitted by the Coalition for a Democratic Workplace (CDW) in order to detail how the proposed rule would impact the construction industry.

Dubbed by some opponents as the “quickie election” or “ambush election” rule, the regulatory proposal would change the NLRB’s procedures in cases where a union files a petition for an election to determine whether it will become the collective bargaining representative of a unit of workers.  The changes would speed up the process, limiting employers’ opportunity to communicate with workers about union representation, enhancing unions’ opportunity to communicate with workers, and otherwise making it easier for unions to organize open shop contractors or to shore up relationships with union contractors that have pre-hire agreements.  Among the changes proposed, the proposed rule would:  shorten the time between the filing of the petition and the holding of the election, eliminate pre-election hearings, expand the information that employers must disclose about employees to include e-mail addresses and telephone numbers, and render post-election review by the Board discretionary.

CDW’s comments assert, among other things, that the shortening of the pre-election time period subverts the policies and purposes of the National Labor Relations Act, that the disclosure of employee e-mail addresses and phone numbers would cause undue interference with business operations and employee privacy rights, that deferral of hearings until after election defeats the purpose of such a hearing, and that the requirement of a pre-hearing statement of position constitutes a denial of due process for employers.  AGC is also a member of the U.S. Chamber of Commerce, which submitted comments focusing on various substantive and procedural deficiencies in the proposal rule.

AGC’s supplemental comments explain how the proposed rule would have a particularly difficult application and detrimental impact in the construction industry.  This is due to a number of unique aspects of the industry, including the complexity of bargaining unit and voter eligibility determination, and the decentralized nature of the workplace.  Regarding the proposed mandatory disclosure of employee e-mail addresses and telephone numbers, AGC pointed out that recent cases have illustrated how construction unions might misuse such information.  AGC also advised that the proposed rule might lead to unintended consequences in the realm of increased litigation and backlash legislation.

AGC also provided an abbreviated letter for members to send to the NLRB on their own via AGC’s online Legislative Action Center.  The deadline for submitting comments was yesterday.

AGC will continue to monitor and report on developments.  Given the extraordinary number of public comments submitted, the NLRB is not expected to issue a final rule very quickly.

For more information, contact Denise Gold, Associate General Counsel, at goldd@agc.org or (703) 837-5326.