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August 3, 2011

This is Utah SHRM Legal-mail no. 2011-13 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).



National SHRM has issued the following action alert:

The National Labor Relations Board (NLRB) recently issued a proposed rule changing the Board’s procedure for union election campaigns.  The proposal shortens the time frame for union election campaigns and makes other changes to the unionization process.  The proposed rule contains a number of provisions of concern including:

• Shortened Timeframe.  Because unions can prepare their entire unionization campaign before making it public, shortening the time between filing and the election creates a disadvantage for employers.  Unless employers have adequate time to prepare their educational materials, employees will not have full information about the pros and cons of unionization.  In addition, the NLRB has not shown why the current timeframe (median of 38 days) needs to be shortened.

• Changes to the Statement of Position.  The proposal requires employers to disclose their entire case theory in this document and precludes employers from presenting evidence on any issue that the employer fails to include in the Statement.  This preclusion raises due process issues for employers and is likely to increase litigation.

• Mandated Disclosure of Employee Information.  Under the rule, employers are required to turn over private employee information, including employee telephone numbers and e-mail addresses.  The rule does not specify whether these are home or work contact information or both.  This is an invasion of employee privacy and an invitation to distract employees during the workday.

• Deferral of Representational Disputes.  The proposed rule, under certain circumstances, defers litigation of representational disputes, such as the eligibility of voters, until after the election is held.

This NLRB proposal is the most recent action government entities have taken seeking to make unionization easier, and comments to the NLRB are due August 22, 2011.

It is important to note that the U.S. Department of Labor (DOL) has also issued a proposal that would expand the public disclosure rules to require that employers report virtually all services regarding labor relations and union organizing.  Taken together, the DOL and NLRB rules will severely inhibit employer free speech and have the effect of preventing employees from hearing both sides of the unionization debate.  The comment period for the DOL rule was recently extended until September 21, 2011.  SHRM will be providing you with addition information on how to comment on the DOL proposal as the September 21 deadline for comments approaches.

SHRM Activity on the NLRB Rule

SHRM plans to submit comments to the NLRB before the due date of Monday, August 22, 2011.  On July 18 and 19, 2011, SHRM also participated in an NLRB public meeting on this proposal.  Roger King of Jones Day testified on behalf of SHRM and his testimony is available here:

We encourage all concerned SHRM members to make their voices heard on this issue by following the directions below.

Action Needed by August 22, 2011

Submit your comment by clicking here (!submitComment;D=NLRB-2011-0002-0001) to access the website.  On this website, you should type your information into the form provided, copy and paste the comment below into the box on the right and click the SUBMIT button to file your comment with the NLRB.  Please feel free to edit and revise the proposed text (below) to incorporate your own thoughts and experience.

Suggested Comment Language

Mr. Lester A. Heltzer
Executive Secretary
National Labor Relations Board
1099 14th Street NW
Washington, DC 20570

Re:  Proposed Rule Governing Representation Case Procedures;  RIN 3142-AA08 

Dear Mr. Heltzer:

As an HR professional and member of the Society for Human Resource Management (SHRM), I am writing to share my concerns with the National Labor Relations Board’s (“NLRB” or “Board”) proposal to alter its process for union representation.

I do not believe that the Board has properly established the need for changes to the election rules.  Last year, the average time for a representation election for all petitions filed was 31 days.  Even contested and other types of decisions have been issued well within the timeframe goals established by the General Counsel, making wholesale changes in the rule unjustifiable.

The proposed rules do not properly balance the rights of employees, employers and labor unions in the pre-election period, and the shortened timeframes deprive employers of their due process rights under the National Labor Relations Act.  Communication with employees is a vital function in the workplace and I am concerned that these rule changes prevent employers from effectively communicating with employees about the unionization process.

The proposal also contains a provision precluding employers from addressing any issue that was not raised in the Statement of Position.  Coupled with the shortened timeframe for producing the Statement of Position, this provision is detrimental to employers and likely to increase litigation related to election proceedings, rather than expedite them.

The NLRB proposal on union election rules is but one of several NLRB and federal agency actions affecting employers in recent months.  Given the impact of these regulations on employers coupled with the lack of a rational basis for the proposal, I respectfully request that this proposal be withdrawn.

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Phone: 801-534-7315

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.