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Union Representation Election Rules

Lawmakers, NLRB witness stiff resistance to proposed changes

Editor’s note: The author is President of Carew Concrete & Supply Co., Appleton, Wis. A second-generation, family-owned ready mixed operator, Carew Concrete runs a 150-plus mixer fleet and has a payroll of 170 across 13 ready mixed and aggregate plants.

This article is adapted from testimony John Carew presented on behalf of his company and the National Ready Mixed Concrete Association at a July 7 Capitol Hill hearing, “Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice,” before the U.S. House Committee on Education and the Workforce. Committee Chairman John Kline (R-Minn.) called it in response to a National Labor Relations Board-proposed change for union representation election rules (note opposite page box)

The current makeup of the ready mixed concrete industry is top-heavy: A large majority of the ready mixed concrete produced in the United States comes from a small number of large, vertically integrated companies. These companies amount to nearly 15 percent of ready mixed producers.

The other roughly 85 percent of the industry is made up of small businesses similar to Carew Concrete & Supply Co. As with most small businesses, owning and operating a ready mixed concrete company means you are responsible for everything, whether it’s ordering inventory; hiring employees; meeting environmental and safety regulations; dealing with an array of mandates from federal, state and local governments; and, when appropriate, even unilaterally educating employees about their rights and informing them about union organizing decisions.

As someone that has experienced an organizing drive, I would like to share how the proposed NLRB rule would have hurt and complicated the representation election process. In mid-September of 1999, during one of our busiest times of the year, out of the blue we received word that a union was attempting to organize our en- tire employee base. Shortly thereafter, we consulted with an attorney who advised us to seek legal counsel specific to union organizing drives. Being a small business without in-house labor counsel and with limited resources, it wasn’t until nearly a week later when we finally were able to hire an attorney—from a firm located 100 miles away in Madison.

From that point on, until the election took place 42 days later in October, saying we were busy would be an understatement. Due to the high number of employees, the 13 employment sites, and the fact that the organizing drive was for the en- tire employment base, countering false union claims and educating every employee when they were on-duty was an around-the-clock job. To accomplish all of this, the first step was to educate super- visors and managers, in case they too were approached by a confused employee.

Next we had to create specific responses to specific union claims and relay them back to the employees. This required utilizing the bulk of management resources, and at one point we were even forced to temporarily shut down certain offices in order to respond to the many onerous union claims. From the time we received the election petition, up until the actual election, we ran down the clock on the allotted time to reach each concrete plant and communicate with every employee about the organizing drive.

Employees received inaccurate statements and false promises by union agents. Specifically, employees would receive mail containing either not enough information, or misleading information on issues such as striking, health care insurance, wages and pensions. At times, employees were in- accurately told they would receive in- creased wages, similar to cities with higher wages nearly 100 miles away.

In accordance with the law, our response was to draft and hand out “fact sheets” about the pros and cons of joining a collective bargaining unit, and exactly what, if anything, the union could promise. We sent out numerous blast alerts to each of our plant locations, which would then be posted at each site. The alerts, after we cleared them with our attorney, responded to specific information employees had been told or read in documents they had received in the mail. We felt it was necessary to supply these educational materials in order to give our employees more information so they would be able to make an accurate and educated decision.

Although the process was long and arduous, the fact that we were allowed the needed time to retain counsel, identify the areas of concern with the election, draft and file all appropriate documentation, respond to union rhetoric, and communicate with our employees, was essential. Due to the process afforded to Carew Concrete & Supply, we were able to successfully, and legally, respond to and overcome the union’s actions, which resulted in the union losing the election by a 2-to-1 margin.

Carew Concrete & Supply is a healthy business with 170 well-paid, happy employees. Like many small, family-owned businesses, our employees have become an extension of our family. This relation- ship is the backbone of our 34 years of success. Carew Concrete and the National Ready Mixed Concrete Association support employees’ right to make informed decisions collectively about their employment future; however, we believe the newly proposed union election rules do not support this same principle.

If our union organizing experience had been subject to the changes contained in the proposed rule, it would have been dramatically different. In particular, the overall time frame allowed and needed between the notice of election and the execution of the election was critical to accurately inform our employees about the issues. Most small companies in general do not know what they can and cannot say to their employees about or during a union organizing drive.

When an employer receives an election petition, which is often when they first become aware that their employees are facing a union organizing election, it frequently takes longer than seven days to find and hire a consultant to advise them on their rights, abilities, and the complexity of union election regulations. Under the new rule, the shortened time frame does not even take into ac- count the time it takes to accurately identify all the issues needing consideration, the drafting of the employer’s statement of position, preliminary voter list, and discovering relevant evidence.

The flexibility in the current system allows companies to accurately and thoroughly assess the process, actions, and options associated with a petition of election and thus, it should be kept intact. Already, unions have the advantage of subtly working be- hind the scenes for months without an employer’s knowledge to persuade employees to unionize. It is only fair that an employer be allowed the current time frame to accurately communicate with employees. Employers are already at a disadvantage and under this new rule would be disadvantaged even further.

Drastically limiting any amount of employee/employer commu- nication brushes too close to infringing on the freedom of speech rights of both parties. Just as Carew Concrete & Supply and NRMCA support employees’ right to make informed decisions collectively about their employment future, we also believe in protecting an employer’s right to be a part of that process and to have the ability to honestly and effectively communicate an employer’s position to employees without obstruction.

We urge the NLRB to refrain from issuing a final rule on these proposed changes. It is only fair that before a group of employees decides on their collective bargaining rights that they receive in- formation from both union and their employer about what unionizing really achieves.


Representation - Case Procedures

National Labor Relations Board-proposed changes 

Released June 22 and subject to a 60-day public comment period, the Representation—Case Procedures Notice of Proposed Rulemaking outlines amendments to existing NLRB rules and regulations for unions, employers and employees following petitions for representation. The proposal has drawn sharply differing views from policy observers, industry groups and within the agency itself:

Proponents
The proposed amendments “are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing,” the NLRB
notes, and would:

  • Allow for electronic filing of election petitions and other documents;
  • Ensure that employees, employers and unions receive and exchange timely information to understand and participate in the process;
  • Standardize time frames for parties to resolve or litigate issues before and after elections;
  • Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation;
  • Defer litigation of most voter eligibility issues until after the election;
  • Require employers to provide a final voter list in electronic form soon after election scheduling;
  • Consolidate all election-related appeals to the Board into a single post-election process, eliminating delay in holding elections currently attributable to the possibility of pre-election appeals; and,
  • Make Board review of post-election decisions discretionary rather than mandatory.
Opponents

The Associated Builders & Contractors and National Ready Mixed Concrete Association note the proposed rule would likely cut the representation election window from an average of 45–60 days to 10–21 days; and, limit an employer’s ability to effectively communicate to workers the impact of unionization.

In his dissent from NLRB Chairman Wilma Liebman, along with Members Craig Becker and Mark Pearce, (fourth Board) Member Brian Hayes affirmed that the proposed rule would substantially shorten the time between representation petition filing and elec- tion date, and “limit the opportunity for full evidentiary hearing or Board review on contested issues involving appropriate unit, voter eligibility, and election misconduct. The principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”

Representation—Case Procedures was subject to a public comment period scheduled to close August 22, with potential implementation this fall.