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NGA Testifies Before NLRB on 'Quickie' Election Rule

Kara Maciel of Epstein Becker Green testified before the National Labor Relations Board (NLRB) on behalf of the National Grocers Association (NGA) regarding a Notice of Proposed Rulemaking (NPRM) that makes substantial changes to rules governing union-representation elections.

According to NGA, if enacted, this rule would give unions an unfair advantage over employers by drastically shortening the amount of time between the filing of a petition to unionize and when an election would occur from an average of 35 to 40 days to as few as 11 to 15 days. NGA also submitted public comments.

"The proposal put forth by the NLRB will drastically and unnecessarily change longstanding procedures, which are currently on the books, to ensure both employers and employees are properly informed, and able to participate in the most fair union election process possible," said Peter J. Larkin, NGA president and CEO.  "If adopted, this rule will erode employer rights and employee privacy in the workplace, and tilts the playing field in favor of organized labor; therefore, NGA will continue to strongly advocate against this rule."

The NPRM is almost identical to what NGA refers to as the original "ambush" election proposal, which was issued by the board in June 2011, and was invalidated by the Courts due to the NLRB's lack of a full five-member quorum. NGA adamantly opposed this rule in 2011, and will continue to oppose the rule while the NLRB operates in a full quorum.

NGA is opposing the NPRM on the following grounds:

  • Timing of the election: NGA opposes any reduction in the scheduling of the election because hasty decisions don't make good decisions.
  • Compulsory disclosure of private email and phone numbers: NGA is concerned about the NPRM's proposal of compulsory disclosure on voter lists to include personal and confidential e-mail accounts and phone numbers.
  • Changes to litigated issued during pre-election hearing: There are due process problems contemplated by the NPRM's changes to the litigated issues during the pre-election hearing.
  • Waiver of issues at pre-election hearing: One of the main changes contemplated by the NLRB would require parties to raise every possible argument at the initial election hearing, or risk waiving those arguments. 

Accordingly, within days of the union filing a petition, the employer must get a handle on the organizing drive. Small business owners are not armed with legal staff and it would necessarily take time to locate, retain and consult appropriate labor counsel in this regard.

Maciel is testifying on behalf of NGA at the NLRB's public hearing on the NPRM, which will be live-streamed Thursday April 10 from 10:00 a.m. to 5:30 p.m. EST, and Friday, April 11 from 9:30 a.m. to 4:30 p.m. EST. Live-streaming of this hearing will be available on the NLRB website.

The House Education and the Workforce Committee held a markup yesterday on the "Workforce Democracy and Fairness Act" (H.R. 4320) and the "Employee Privacy Protection Act" (H.R. 4321). NGA sent this letter to the Committee supporting this legislation, which seeks to rein in the NLRB from implementing overreaching regulations that hamper the rights of workers and employers during the union election process. Both bills passed out of the committee.

The NGA is the national trade association representing the retail and wholesale grocers that comprise the independent sector of the food distribution industry.


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