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Industry to Labor Board: Narrow election window fails employers, employees

Representative John Kline’s “Rushing Union Elections” hearing was followed by a July 19-20 open meeting at the National Labor Relations Board’s Washington, D.C., headquarters, where Members invited perspective from industry, organized labor, and labor law interests on the Representation—Case Procedures Notice of Proposed Rulemaking. Portions of presentations from Robert Garbini, President of the National Ready Mixed Concrete Association, and Steve Jones, Director of Human Resources for Chandler Concrete Co. in Burlington, N.C., are provided here.

Robert Garbini, NRMCA
The National Ready Mixed Concrete Association represents 1,300 member companies and their subsidiaries. They employ more than 125,000 American workers, many unionized, and operate in every U.S. Congressional district.

Ready Mix Concrete is a unique industry, which relies on numerous employees located at different production plants in order to provide a perishable product on a just-in- time basis—all hours of the day. Due to the industry’s isolated plant locations, unpre- dictable delivery schedules, dispersed em- ployees, and unusual business hours, NRMCA and its members feel that NLRB's proposed rule will not allow companies ample time to accurately and thoroughly assess the process, actions, and options associated with a union election or to educate employees to make an informed decision.

Contrary to the proposed rule’s intent, we believe the proposed time frame will lead to a longer union election process. Many Ready Mix Concrete companies do not employ in- house counsel or experts knowledgeable about labor laws. As such, many of these same companies are located in rural areas, and thus legal counsel specializing in union organizing drives is not readily accessible. This scenario will lead to a greater number of pre- and post-election complaints and possibly unfair labor practice filings due to objectionable actions of employers who are unfamiliar with the intricate and confusing laws and rules governing union elections.

Furthermore, we believe the proposed rule restricts employees' ability to hear from their employer on issues that affect staff, employer, and union alike. This amounts to a grave disservice to employees' capacity to make an educated decision about their employment future. The ability of employees to hear from both unions and employers about creating a collective bargaining relationship should be the foundation of any proposed rule.

As mentioned, many Ready Mix Concrete companies are already unionized. It is their experience that a trustworthy, honest, and accountable open cohesion between union, employee, and employer is necessary for all parties to prosper and maintain a productive working relationship. NRMCA believes the proposed rule does not adhere to these principles.

Concrete companies have many employees that work at various hours at numerous plants. The current rule governing represen- tation elections, although not perfect, provides companies flexibility to reach out to each individual plant and the entire employee base in order to thoroughly inform them about a collective bargaining relationship, their rights, and the proposed union and employer roles should staff choose to organize.
NRMCA believes that the proposed rule will not allow companies ample time to hire legal counsel, accurately identify all of the issues needing consideration, draft a statement of on, determine employee categories, prepare an accurate preliminary voter list, over relevant evidence and thoroughly ducate the employees about creating a collective bargaining relationship. The flexibility in the current system allows companies to accurately and thoroughly assess the process, actions, and options associated with the union election as well as to adequately educate employees and thus should be kept intact.

NRMCA supports employees' rights to make informed decisions about their mployment future. We also believe in ecting an employer's opportunity to be of that process. Creating a collective ning relationship should not be a closed process or snap decision. NRMCA urges the NLRB to refrain from issuing a final rule on these proposed changes. 

Steve Jones, Chandler Concrete
Speaking as a human resources practi- tioner, not as a representative of any spe- cific group, my purpose is to offer perspective on the impact of the proposed changes on the individuals who will be most affected ... the employees. I have worked as a human resources professional for almost 30 years “in the trenches” as an employee advocate, from entry level to the most highly skilled staff in manufacturing plants, distribution centers, healthcare fa- cilities, and office environments.

The day-to-day focus of employees in these organizations has been on producing products or services to meet customer needs. Doing what they were hired to do. Time has not been spent on discussing the pros and cons or impact of collective bar- gaining or the legal aspects of a union or- ganizing campaign. Similarly, the focus of the management teams in every company where I have worked has been on ensuring that the business remains competitive with the products and services it provides to its customers both in short and long term. Time has not been spent discussing how to define bargaining units, or behavioral or verbal nuances that might constitute un- fair labor practices.

Based on my experience and conversations with HR colleagues, the NLRB’s proposed rule to accelerate the representation process will create an undue hardship on both em- ployees and employers, and should not be adopted in its present form. In this age of technology, there is a propensity to try to do things “quicker” or “faster,” but we all know that does not always mean better.

Unnecessarily rushing or accelerating the union election representation process will create a significant disadvantage for the employees who will be affected by the ul- timate outcome. A reduction in the (peti- tion-to-election) time frame will result in less information for employees to make an informed and educated decision about their work future and ultimately increase the likelihood and probability of error, both of which are bad for employees.

I have heard repeated concerns and accusations that the current time frame allows for intimidation of employees, which will be re- duced or eliminated. This type of illegal behavior is addressed through unfair labor practice sanctions. If that’s the case, address the penalties, address the bad actors and consider increasing the sanctions for those offenses. Deal with the bad apples. Don’t cut down the entire orchard and start over.

While there might be some opportunity for administrative changes to reflect the use and availability of technology, expedit- ing the initial hearing and secret ballot election will be a disservice and disadvantage for every employee who might be affected by the outcomes. Given that over 90 percent of the private sector workforce is not covered by a collective bargaining agreement, it is reasonable to conclude that the average employee is unfamiliar not only with the representation process but also with the pros and cons of a work environment where a collective bargaining agreement exists.

Reducing the amount of time to provide this information is a dis- service to employees and puts them at a disadvantage when making their decision on whether or not to support the idea of collective bargaining. They should be entitled to make an informed decision that includes giving consideration to all parties … labor as well as the company. It is reasonable to conclude that these employees have been given a plethora of information regarding the pros of collective bargaining from the labor organization prior to the filing of the pe- tition with the Board. And this sharing of information is not subject to any similar time restriction prior to petition filing.

I think the notion or belief that employees are regularly being given information by companies about the pros/cons of collective bargaining as a standard course of doing business is unfounded. The typical small company employee is wearing a number of “hats” on any given day and is, as I stated earlier, focused on doing his/her job to the best of their ability to help keep their company competitive and viable. Ongoing training and education on the representation process is not one of those regular activities.

The typical response by an employer upon receipt of a petition includes developing a schedule/plan to meet with employees to begin that education process. In my world, the production and distribution of ready mixed concrete, the logistics of this can be daunting given the nature of our business, the geographic distri- bution of our facilities, and the lean staffing we have. Condensing the time frame to get this done is not only unfair to each em- ployee, it will most certainly disrupt the business such that cus- tomer service will be adversely affected, leading to lost contracts, lost revenue and possibly lost jobs. None of which is in the best interest of employees.

This lack of information also extends to the average employer. While many larger corporations have ready or convenient access to labor attorneys or experienced human resources professionals either on staff or retainer, the average small business owner is not afforded this same luxury. The receipt of a petition for represen- tation will set in motion an immediate search for an available and experienced resource in labor law to help understand the require- ments of the petition and to adequately prepare for the hearing. Likewise, most do not have an experienced human resources pro- fessional as an additional resource. As a result, when they receive a petition, the availability of a labor attorney to assist them in the process might take several days or longer to secure.

Meanwhile, with the clock “ticking,” the legal wrangling goes into high gear, and the affected employees are not being given adequate or sufficient information or attention as the focus is on re- sponding to the petition and preparing a response for the hearing. And as an HR professional, I can tell you that the focus on re- sponding to the petition also reduces the amount of quality time and focus a company can give to educating and training its man- agers on their legal responsibilities during the representation process. This alone can, and most likely will, result in an increase in unfair labor practice charges, which will ultimately end up tak- ing more time on the part of the Board. And the ultimate impact will be on the employees of the company … the stakeholders who should benefit from these proposed changes.

The current representation process enables all stakeholders to provide information, review, assess and analyze this information before employees make a final decision through a secret ballot election. It supports giving employees the opportunity to make an informed decision, not one that is rushed or hurried. I think all of us will agree that we need time to gather and evaluate in- formation when we make significant decisions that will affect and impact our lives, such as getting married and buying a home, as well as those affecting our livelihood. Why should we “rush” the representation process when there seems to be no basis either in fact or reality that such a change will ultimately benefit the over- whelming majority of employees who might be affected by the out- come of a representation election?

I encourage the Board to give serious consideration to who, specifically, will ultimately benefit from the proposed changes. It is my strong belief that none of the proposed changes will result in a more positive process for the employees affected. At the end of the day, we should all want a fair process, not just a fast one.