NAMA Warns Of NLRB Plan To Shorten Union Certification Procedure

Posted On: 8/3/2011

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National Automatic Merchandising Association, National Labor Relations Board, union organizers, NLRB election, small business news, union certification procedure, vending, vending machine business

WASHINGTON -- The National Automatic Merchandising Association is alerting its members to a proposal being considered by the National Labor Relations Board to streamline the process by which union organizers and a business's management prepare for an NLRB election.

The NLRB's proposed rules would shorten substantially the period between the union's petition filing and the election to be conducted by the NLRB, the association reported. This would limit an employer's ability to communicate effectively with employees prior to the vote.

"The unions have argued that this time period simply allows employers to thwart union-organizing efforts," NAMA explained. "If the NLRB is successful in its attempt to streamline elections, companies -- especially small businesses -- would be deprived of the opportunity to effectively seek legal counsel and to communicate appropriately with their employees prior to a vote."

The NLRB's proposed rule changes also would postpone many employers' challenges to the organizing process until after the election; do away with the 25- to 30-day waiting period between a union's election petition and the election -- under the proposed rules, employers reportedly could expect the NLRB to conduct elections within 10 to 21 days after the petition is filed -- and require employers to include cellphone numbers and email addresses in the employee lists that they are required to provide to the union organizers.

The NAMA legislative alert includes a link to the transcript of testimony presented to the NLRB at a hearing in mid-July. Attorney Peter N. Kirsanow, a partner in the labor and employment practice group of Benesch Friedlander (Cleveland) testified on behalf of the National Association of Manufacturers. Kirsanow served on the National Labor Relations Board for two years before returning to Benesch in 2008.

At the hearing, he asserted that the proposed rule changes would have "a significant adverse effect on manufacturing, the meaningful exercise of Employee Section 7 rights, employer rights under Section 8(c) and the workplace in general." He added that "at least 17 readily identifiable, substantially deleterious effects" would result from the proposed rules, and he discussed two of them in detail.

Specifically, shortening the period between the petition filing and the election from its present median duration of 38 days to the proposed 10 to 14 days "will completely and utterly deprive employers of the ability to communicate vital information to their employees regarding their rights and the effect of unionization."

Even under the current median of 38 days, he explained, "many employers have a difficult time effectively communicating their positions to employees. This is especially true for smaller employers."

This would be compounded by the proposed rules' rushing the procedural safeguards for the election process, and would impose strict determinative pleading requirements on the employer.

"The employer must craft its position on a variety of issues within seven days or forfeit its right to do so, thereby depriving many employers of effective legal counsel -- and thus due process -- and arguably impeding the employer's ability to petition the government for the redress of grievances," Kirsanow warned. "Moreover, the post-election scope of review will be limited and discretionary."

The transcript of Kirsanow's objections is available online from the National Association of Manufacturers.