formal comments to the Board's proposed rule. - SEIU

I
Stronger Together
MARY KAY HENRY
International President
ELISEO MEDINA
International Secretary-Treasurer
MITCH ACKERMAN
Executive Vice President
GERRY HUDSON
Executive Vice President
EILEEN KIRLIN
Executive Vice President
DAVE REGAN
Executive Vice President
TOM WOODRUFF
Executive Vice President
SERVICE EMPLOYEES
INTERNATIONAL UNION
CTW CLC
1800 Massachusetts Ave., NW
Washington, D.C. 20036
202.730.7000
TDD; 202.730.7481
wswSEIU.org
3377 73628.33
August 22, 2011
Lester A. Heltzer
Executive Secretary
National Labor Relations Board
1099 14th Street, NW.
Washington, DC 20570.
Dear Executive Secretary Heltzer:
The Service Employees International Union (“SEIU”) submits the following
comments on the National Labor Relations Board’s Notice of Proposed Rulemaking on
Representation Case Procedures, 76 Fed. Reg. 36,812 (June 22, 2011) (“NPRM”).
SEIU submits these comments on behalf of its 2.2 million members, who include
janitors, nurses, heaithcare workers, food service workers, security officers, and other
service workers covered by the National Labor Relations Act.
Today, when American workers seek to form a union under the NLRA, they
must navigate an election process that is in drastic need of repair. The broken system
allows employers to carry out severe—and sometimes illegal—intimidation tactics
against workers who attempt to organize. These serious and pervasive flaws in the
system have been documented for decades.’ As a result, despite significant increases in
the number of workers who want a union, fewer NLRB elections than ever have been
held. 2 SEIU believes that the NLRB’s proposed regulations will streamline the election
procedures, thereby reducing the opportunity for employers to engage in this coercive
and illegal conduct.
‘Dunlop Commission On The Future Of Worker-Management Relations: Final Report 9 (1994),
http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1004&contextkey workplace,
discussed infra at Part IA.
2 Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing at 8-
9 tbl.2 (Econ. Policy Inst., EPI Briefing Paper No. 235, 2009) [hereinafter Bronfenbrenner, No Holds
Barredj, available at http://epi.3cdn.net/edc3b3dcl72ddl094f Oym6ii96d.pdf. SEIU believes that it is
unfair to subject workers to a system that is largely rigged in favor of their employers and do not provide
adequate protection from lawbreakers. To that end, where possible, SEIU has sought to protect
employees from this intimidation and coercion that is typical of traditional NLRB campaigns by entering
into private codes of conduct with employers, where workers who wish to organize have greater
protections from employer misconduct. See generally New York Health and Human Service Union,
1199/SEIUv. NYU Hospitals Center, 343 F.3d 117 (2d Cir. 2003) (holding that “hybrid agreements”
where the parties agree to a private code of conduct as well as a Board-supervised election are
enforceable under Section 301 of the Labor Management Relations Act); Service Employees
International Union v. St. Vincent Medical Center, 344 F.3d 977 (9th Cir. 2003) (same).

These proposed regulatory reforms are quite timely because American workers are currently in
the midst of the worst economic crisis since the Great Depression. While corporate profits are soaring,
the middle class is disappearing as wages are stagnant, pensions are non-existent, and more and more
workers do not have access to health insurance, let alone paid sick days. As the 2007 House of
Representatives report on “Strengthening America’s Middle Class” found, the decline of unionization
and the associated decline in wages and rise in economic insecurity have had devastating effects on the
size and security of the American middle class.
was the private sector solution to the Great Depression. Promoting the rights of workers to unionize
3 The Wagner Act recognized that collective bargaining
would reduce the bargaining and wage inequality that “tends to aggravate recurrent business
depressions, by depressing wage rates and the purchasing power of wage earners in industry and by
preventing the stabilization of competitive wage rates and working conditions within and between
4 American workers in our depressed economy need unions now more than ever.
industries.”
For these reasons, SEIU believes the NLRB’s proposed rules are modest, yet important steps in
modernizing the NLRB election process and hopes that they will open up the opportunity for more
workers to make free, informed, and timely choices about forming unions. To be sure, there are many
other aspects of the NLRB election process that need reform, but the proposed rules are important first
steps in addressing those aspects of the system that are amenable to regulatory reform.
In our comments, we will discuss: (I) why there is an urgent need for reforming the broken
NLRB election system; (II) why the proposed rules are an important step in fixing in reforming this
system; (III) why the proposed timelines are reasonable and preserve the employer’s ability to
campaign against the union; (IV) why modernization of the Excelsior list requirements is a critical
component of reform; (IV) why the NLRB should not modify the current blocking charge doctrine, as
proposed; and (VI) why electronic signatures should not be adopted in the rulemaking process.
I. The Current NLRB Election System is Broken
The current NLRB election system gives employers too many opportunities to hijack the election
process, greatly delaying the election date and extending the time for the employer to commit ULPs and
intimidate workers. In more than 95% of union elections, employers engage in anti-union campaigns,
which typically include:
5
forced attendance at captive audience meetings, with an average of 10-12 such meetings
per campaign;
6
“Strengthening America’s Middle Class,” H. Rep. No. 110-23, text accompanying notes 25-43 (2007); see also “Union
Decline Accounts for Much of the Rise in Wage Inequality,” American Sociological Review (August 2011).
29 U.S.C. §151.
Bronfenbrenner, No Holds Barred, supra note 2 at 10, tbl. 3.
6 Gordon Lafer, American Rights at Work, Neither Free nor Fair: The Subversion of Democracy Under National Labor
Relations Board Elections 42 tbl. 2 (2007) [hereinafter Lafer, Neither Free nor Fair].

• one-on-one meetings with workers, usually on a weekly basis, to threaten job loss, wage
and benefit cuts, and plant closings;
7
• threats of cuts to wages and benefits;
• threats of plant closings;
• discriminatory discharge of union supporters;’° and
• other discrimination against union supporters.
9
8
11
Overall, employers have ULP charges filed against them in nearly half of all union elections.’
2 This
reflects a concerted decision by employers to “focus ... on more coercive and punitive tactics designed to
intensely monitor and punish union activity.”
“peak again just before the election,” suggesting that the petition-to-election period is a critical time for
employer-committed ULPs. 14
3 And, discrimination and retaliation for union activity
There is no question that these anti-worker tactics have been effective. Workers are 24% less
likely to secure union representation when an employer mounts an anti-union campaign.’
5 This is
because delaying the election date only gives employers additional opportunities to engage in more of
these aggressive and intimidating tactics. Decades of research have shown that the prolonged exposure
of workers to employer interference that occurs when Board elections are delayed influences the way
workers vote.
16 One study found that the probability of unionization drops by more than 2% for each
week of delay between the petition and the vote.
17 Even controlling for other factors, “there is a
considerable causal relationship between the length of election delay and the number of NLRB
complaints filed against employers.”
18 The more time that elapses, the more opportunities employers
Bronfenbrenner, No Holds Barred, supra note 2, at 25; Kate Bronfenbrenner and Dorian Warren, “The Empirical Case for
Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence,” Cornell University
and Columbia University 7, available at
http://iserp.columhia.edu/sites/defaultifiles/working papers/working paper cover 201 1-0 1-final.pdf.
8 Bronfenbrenner, No Holds Barred, supra note 2, at 2.
91d.
10
1d.
Id. at 10 tbl.3.
12 John Logan, Erin Johansson, and Ryan Lamare, U.C. Berkeley, New Data: NLRB Process Fails to Ensure a Fair Vote,” 3
(June 2011), http://laborcentcr.berkclcv.edu1ahorlaw/NLRB Process June2011 .pdf
13 Bronfenbrenner, No Holds Barred, supra note 2, at 2.
‘41d.
15 Id. at 10 tbl.3; see also id. at 13-14 (“[M]ost of the more extreme employer tactics—supervisor one-on-ones at least
weekly, police walk-throughs, plant closing threats, promises, bribes, or assisting the anti-union committee—are associated
with union win rates several percentage points (between 5 to 7) lower than in campaigns where they are not used.”)
16 See, e.g., Michele Campolieti, Chris Riddell, and Sara Slinn, Labor Law Reform and the Role of Delay in Union
Organizing: Empirical Evidence from Canada, 61 IND. & LAB. REL. REv. 32 (2007).
17 Paul Weiler, Promises To Keep: Securing Workers’ Rights to Self-Organization Under the NLRA, 96 HARV. L. REV. 1769,
at 1777 n. 24 (1983).
Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 1.
3

have to commit ULPs, which intimidate workers and convince them that supporting the union is not
worth sacrificing their jobs.
A. Employers’ ability to manufacture disputes at pre-election hearings allows them to
delay elections and enables further lawbreaking
Critical to understanding the employers’ success in deploying these anti-union tactics is the
Board’s current prolonged election timetable, which provides them with ample opportunities to
manufacture frivolous disputes and prolong the pre-election process.’
anti-unionization consultants
2° as well as empirical studies
9 Indeed, manuals prepared by
21 emphasize the vital importance of
protracted election periods to the destruction of union support. And the Board’s own election statistics
demonstrate how successful employers have been.
Although the NLRB reports that the median time between the petition and election is 38 days,
many workers experience far longer delays due to the current hearing process.
22 When the employer
insists on a pre-election hearing, the time from petition to election increases dramatically, to an average
of 124 days. 23 Although most elections are held in less time pursuant to stipulations, “the mere fact
that the NLRB allows parties the ability to delay cases for an extended period simply by forcing a
hearing skews the process in employers’ favor.”
24 Anti-union consultants counsel employers to demand
a hearing and challenge everything, even pursuing “groundless legal challenges that are clearly doomed
to failure” in order to buy more time to engage in anti-union campaign.
25
Once delay has been achieved, week by week, coercive employer actions wear workers down.
Workers who support unionization are methodically identified, intimidated and, in some cases,
discharged. “For employers, every day of delay is a day in which managers are free to communicate
19 Benjamin I. Sachs, Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing, 123 Harv. L.
Rev. 655, 666-67 (2010).
20
See e.g. Lafer, Neither Free nor Fair, supra note 6, at 45 fig.A (excerpted from an anti-union campaign manual, Robert
Lewis and William Krupman, Winning NLRB Elections: Management’s Strategy and Preventive Programs, 2nd ed., (New
York: Practicing Law Institute, 1979)).
21 See, e.g., Weiler, supra note 17, at 1777 n. 24 (1983).
22 NLRB Summary of Operaiions (Fiscal Year 201Q) at 5. Logan et. al report a median figure of 39 days based on their
analysis of data obtained by FOIA request. See Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 1
n.4.
23 Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 1-2. Although the NLRB’s annual report does
not report the median time from petition to election when there is a pre-election hearing, we approximate the median would
be 62-67 days by taking the median time from petition to RD-directed election (37 days) and adding 25-30 days, per the
current Statement of Procedures which provide that elections should be delayed for this period to allow for a party to file a
request for review with the Board (this period would be eliminated under the proposed rule). See 29 CFR § 101.21(d).
24 Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 2.
25 Lafer, Neither Free nor Fair, supra note 6, at 24.
4

anti-union messages to subordinates, eight hours a day, while union supporters are restricted to brief
lunchtime conversations” during the work day.
pro-union majorities have been eroded by discriminatory discharges and intimidation. As former U.S.
26 Thus, by the time the Board holds the election, initial
Senator Arlen Specter put it, “the interminable delays leading to the resolution of unfair labor practices
or representation cases at the NLRB render any poll of union support virtually meaningless by the time
the case is resolved.”
27 Research shows that “[t]he longer the delay between the filing of the petition
and the election date, the more likely it is that the NLRB will charge employers with illegal activity.”
28
This often creates a vicious circle: the longer the delay, the more illegal employer conduct, which in turn
leads to ULP charges against employers, thereby delaying the election even further.
This not a new problem. The collapse of workers’ rights under the present representation
election system has been documented for years.
29 According to the 1994 Final Report of the Dunlop
Commission, a non-partisan commission that included labor, employers and academics, the evidence
“demonstrated conclusively that current labor law is not achieving its stated intent of encouraging
collective bargaining and protecting workers’ rights to choose whether or not to be represented at their
workplace.”
3° Noting that “[a] lengthy, political-style election campaign serves no useful purpose in the
labor-management context”
31 and that “a system is poorly designed if it gives parties an incentive and
opportunity to seek delay for its own sake,”
32 the Dunlop Commission recommended some of the exact
same measures the NLRB is now proposing. These included “[pjroviding for prompt elections after the
NLRB determines that sufficient employees have expressed a desire to be represented by a union” and
resolving some “challenges to bargaining units and other legal disputes” after elections are held.
33
The dysfunctional nature of the United States’ NLRB-supervised election system is particularly
notable because it is out of sync with international norms.
neighbor, Canada, demonstrates that the union election process can take place expeditiously. Four of
34 Indeed, the experience of our democratic
26 Gordon Lafer, Economic Policy Institute, Proposed Rule Changes by Labor Board Would Make Workplace Elections
More Democratic 8 (EPI Policy Memorandum #188, July 18, 2011) [hereinafter Lafer, Proposed Rule Changes].
27 Arlen Specter & Eric S. Nguyen, Policy Essay: Representation Without Intimidation: Securing Workers’ Right To Choose
Under the National Labor Relations Act, 45 HARv. J. ON LEGI5. 311, 312 (2008).
28 Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 2.
29 See, e.g., Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States under
International Human Rights Standards (August 2000), http://www.unhcr.orclrefworld/docid/3ae6a87h4.html.
30 Dunlop Commission On The Future Of Worker-Management Relations: Final Report 9 (1994),
http://digha1commons.iIr.cornelIedu/ci/vicwcon1cnt.cgi?article=1004&context=keY workplace.
31
1d. at 41.
32 1d at 42
33
1d. at 10.
The Universal Declaration of Human Rights, adopted in 1948, states that “[e]veryone has the right to form a to join trade
unions for the protection of his interests.” G.A, Rcs. 217A (Ill). U.N. Doc. Aj81() at 71, Art. 23t41. Likewise, the
International Covenant on Civil and Political Rights, a document ratified by the United States, states that “everyone shall
have the right to freedom of association with others, including the right to form and join trade unions for the protection of his
interests XlLLN GA\ORjupp (No jJt U N D399 Ui\LSLj2L
5

Canada’s largest provinces (Ontario, Quebec, British Columbia, and Alberta) conduct union elections in
only five to ten days, depending on the jurisdiction.
35 Their experience shows that it is possible to have
a streamlined union election process that allows workers to vote without unnecessary delay.
B. These procedural flaws undermine the NLRA’s statutory purpose
The current system’s regulatory delays also chip away at employee confidence in the Board and
undercut the NLRA’s statutory purposes of removing “recognized sources of industrial strife and unrest,
by encouraging practices fundamental to the friendly adjustment of industrial disputes” and promoting
industrial peace. Instead of promoting peace, a lengthy election period allows employers to wage a “war
of attrition” and promotes what the Dunlop Commission deemed a “highly conflictual” and “highly
adversarial” environment.
practices, American labor law engenders disruption of industrial peace on a much larger scale than
36 Studies have also shown that by failing to rein in these types of adversarial
occurs in other industrialized nations such as Germany and Japan.
37 Instead of promoting peaceful
industrial production, the current representation process encourages wasteful legal wrangling. The
contentious pre-election environment also sets a bad precedent for subsequent dealings between
employers and unions,
opportunity for conflict, election delays are at odds with the Act’s central purpose.
38 further impeding the attainment of industrial peace. By heightening the
This structural bias against workers reinforces their perception that employers can dictate how
representation and collective bargaining processes function. By granting employers the ability to draw
out pre-election hearings by manufacturing disputes and delaying their resolution, current Board
procedures actually magnify the disruptive effects of coercive, unfair, or illegal behavior by employers.
In this context, the proposed rules are a much needed reform. They will restore control of the election
process to the NLRB, rather than allowing the accident of litigation or intentional strategies of delay to
unduly influence the process.
Revised Statutes British Columbia 1996, Chapter 244, s. 24(2) (10 days); Alberta Labour Relations Code, R.S.A. 2000, c.
L-1, s. 34(3) (“as soon as possible after application for certification”); Saskatchewan Trade Union Act, Section 6 (no time
frame); Ontario Labour Relations Act, S.O. 1995, c. 1, s. 8(5) (5 days) ; Nova Scotia Trade Union Act, R.S.N.S. 1989, c.475,
as amended, s. 25(3) (5 days); Newfoundland-Labrador Labor Relations Act, R.S.N.L.1990 Chapter L-1, as amended, s.47(4)
(5 days).
6 Dunlop Fact-Finding Report: Commission on the Future of Worker-Management Relations 79 (1994).
E.g., Kenneth G. Dau-Schmidt, Labor Law and Industrial Peace: A Comparative Analysis of the United States, the United
Kingdom, Germany, and Japan under the Bargaining Model, 8 TUL. J. INT’L & COMP. L. 117, 132-37 (2000).
See, e.g., John-Paul Ferguson, The Eyes of the Needles: A Sequential Model of Union Organizing Drives (March 22, 2008),
at 17 (finding, inter alia, that “pre-election ULP charges... are associated with nearly 50% higher odds of new ULP charges
being filed during contract negotiations”).
6

C. Long delays and ineffective remedies lead workers to give up on the NLRA
representation election process altogether
Some workers find themselves unable to endure the lengthy anti-union campaigns and end up
withdrawing their election petitions altogether. Even though in 91% of campaigns, a majority of
workers sign cards indicating their desire to form a union, in approximately one-third of cases, petitions
are withdrawn before the election can be held.
39 This is explained by the fact that employer-committed
ULPs are associated with an average 25 percent higher likelihood of petition withdrawal.”
4° Although
the proposed rules will not eliminate all of the sources of delay and frivolous litigation, they will provide
workers with more certainty regarding how long the process will take. The streamlined election timeline
may encourage workers to persist, rather than withdrawing election petitions in the face of fierce
employer resistance.
The pattern of withdrawn petitions demonstrates the true meaning of statistics employers cite as
supposed proof that the NLRB election system is working well. For example, although opponents of the
proposed rules repeatedly cite that unions win 60% or more of NLRB elections that are actually held,
this argument misleadingly omits from the denominator 30% to 35% of petitions where no election is
ever held because workers are so thoroughly discouraged by their employers’ intimidation. This is also
reflected in the fact that despite the up-to 60 million workers who say they wish they had a union, fewer
than 100,000 workers were actually able to form new unions through NLRB elections in 2009 (down
from 276,353 in 1970).41
Likewise, although management lawyers herald the drop in unfair labor practice complaints filed
since 1980, this is not a sign of the system’s health. Rather, it is a byproduct of similar declines in the
number of NLRB elections held and the fact workers “have diminished trust that the system will
produce a remedy” in time to restore the integrity of an election and consequently decide not to file
charges in response to many unfair labor practices that occur.
42
The successful anti-union campaign waged against registered nurses by Naples Community
Healthcare System (NCH) exemplifies these statistics. In April 2007, many of the 900 nurses who
worked at two acute care hospitals in Florida decided that they wanted to form a union with SEIU
Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 6 (citing Chirag Mehta and Nik Theodor, Center
for Urban Economic Development, Undermining the Right to Organize: Employer Behavior During Union Representation
Campaigns, available at
hehavior-during-union-rcpresentation-carnpaings.html); John-Paul Ferguson, supra note 38, at 17.
40
41 Lafer, Proposed Rule Changes, supra note 26, at 4. The percent of the non-managerial workforce who say they would vote
for a union has been steadily increasing from 30% in the early 1980s, to almost 40% in the mid-1990s, reaching 53% in 2005.
Richard Freeman, Do Workers Want Unions? More Than Ever, (EPI Briefing Paper No. 182, 2007).
42 Bronfenbrenner, No Holds Barred, supra note 2, at 3.
7

Healthcare Florida so that they could advocate for adequate staffing and prioritizing patients’ needs. But
before they could even file a petition, NCH began punishing those nurses it believed were involved with
the union, including formally reprimanding a nurse for the first time in more than fifteen years merely
because she spoke to her co-workers about the union.
of nurses about the dangers becoming an outspoken union advocate.
43 This sent a quick and clear message to the rest
When SEIU petitioned for an election in August 2007, NCH management insisted on a pre
election hearing to litigate the eligibility of seasonal employees and employees it claimed were
supervisors. Each of these issues did not affect more than 20% of the bargaining unit, and thus, under
the proposed rules, resolution of these issues would have been deferred until after the election. But
under the current system, the lengthy pre-election hearing process provided NCH with an addition time
to implement its hard-hitting campaign.
Chief among those tactics was a brand-new solicitation and distribution policy that NCH
implemented in a discriminatory fashion.
literature in break-rooms,
44 When three off-duty nurses were handing out union
45 a department director told them “[they] wouldn’t be welcome here and
[they] wouldn’t be welcome anywhere” while another demanded they leave, saying “Bye-bye, ladies”
and “You’re finished.”
46 At the same time, NCH invited its own paid anti-union consultants to use the
nurse break rooms,
while the nurses were trying to care for patients.
47 as well as occupy patient care units, where they confronted and distracted nurses
48 Pro-union nurses reported increased surveillance,
including being followed around the hospital and out to the parking lots by hospital security officers.
The totality of NCH’s actions formed the basis of blocking charges that delayed the union
election, but it was not until August 2010 that the Board found that certain aspects of NCH’s anti-union
campaign violated the NLRA. Even then, NCH insisted on re-opening the pre-election hearing rather
than agree to schedule a new election promptly. The nurses had had enough and decided in March 2011
to withdraw their petition rather than continue to subject themselves to any further intimidation. They
simply gave up on the NLRB process.
In some cases, the fear of delay in getting an election date prevents workers from even filing a
petition. A group of Certified Nurse’s Aides (CNAs) at HCR ManorCare—Easton, a nursing home in
Pennsylvania, were fed up with short-staffing, high turnover and low pay and decided to form a union
with SEIU Healthcare Pennsylvania so they would have a voice in the decisions that affected the
Id. at *7376
Id. at *2224
46
1d. at *2224
47
48
1d. at *55
1d. at *6465
Cmty. Hosp., Inc. & SEIU Healthcare Florida, 355 NLRB No. 171, No. 12-CA-025689, *1O11 (Aug. 27, 2010).
8

esidents and their families. Management started an anti-union campaign within two days of the
organizing effort. In less than two weeks, with the help of a professional union-busting consultant,
workers found themselves in a vicious intimidation and harassment campaign that continues to this day
nearly four years later. This anti-union campaign was launched and succeeded before workers ever filed
a petition. In the words of one CNA, Trisha Miechur:
While we were trying to form our union, we were repeatedly taken away from our
residents to go to mandatory meetings with these consultants and our bosses who told us
a union will not make it better... .1 thought I had legal rights but it seemed the system was
blind to what was happening to us, that it existed to work against us, and for our bosses to
treat us wrong. Unless the process changes, stories like mine will never change.
Management has all the power to make you afraid the next day at work will be your last
just because you want to have a voice in improving the company.
Ultimately, even though a majority of workers signed authorization cards, Trisha and her co
workers decided not to file an election petition. They were worried that the employer’s anti-union
campaign would only intensify in response, and under the current system, had no guarantee that the
election would be scheduled promptly. Had there been greater certainty as to the date of the election
and limits on the potential for frivolous litigation in the hearing process, Trisha and her co-workers
would have been more willing to move forward with an election. However, due to their knowledge of
the election system’s flaws, they felt the risks were too high to proceed.
SEIU’s experience organizing workers at NCH and ManorCare are hidden when the “union win
rate” for NLRB elections is calculated because elections were never held and so there was never an
official “loss.” What those who cite union win rates as proof that the system is working ignore is that
anti-union campaigns like these are often so devastating that workers withdraw the petition altogether,
rather than holding an election they have no realistic hope of winning in the face of employer’s harsh
tactics and fierce opposition. A true accounting should reflect the way employer surveillance,
discrimination and other unfair labor practices can squelch a union campaign before an election can be
held. Any measure of the election system’s health must include workers who organize for change, but
eventually give up in the face of fierce opposition by their employer and uncertain possibilities of
protection, remedy, or prompt election by the NLRB. By this measure, it is clear that the there are too
many workplaces where a majority wants a union, but the flaws in the process prevent workers from
ever getting a fair election.
9

II. The proposed rules are a modest but important first step forward in fixing a broken
election system by helping to reduce unnecessary pre-election litigation
The NLRB’s proposed rules, by introducing several new provisions to rationalize the pre
election hearing process, will help standardize the petition-to-election period rather than leaving it to the
vagaries of litigation. This will produce a more efficient and fairer system for resolving eligibility and
bargaining unit disputes.
A. The proposed rules will help produce fair election stipulation agreements
By attempting to standardize the pre-election hearing process, the proposed changes will have a
beneficial impact on the negotiation of stipulation agreements. Under the current system, true
“negotiations” do not take place; rather, the union is often forced to accept the employer’s bargaining
unit description—which may include additional facilities, employees or job classifications into the unit
proposed by the petitioner—and the employer’s preferred election day. The threat of a months-long
delay until the election is enough to force unions to agree to the employer’s demands. In fact,for years,
one SEIU affiliate union had a policy of accepting whatever bargaining unit the employer proposed in
order to get a stipulated agreement. At the heart of employers’ opposition to the proposed regulation is
their dismay at losing their substantial leverage in getting favorable election stipulations.
Under this dysfunctional system, workers can be denied their rights to organize because the
employer insists on their exclusion from the unit, and the union feels compelled to accept the employer’s
demand rather than litigate the issue and delay the hearing. Workers are often forced into a bargaining
unit with individuals with whom they do not work or have little or no contact with, with whom they
have little in common because they perform substantially dissimilar work, or even with their own
supervisors, simply because they work for the same company. For example, in 2009, SEIU1199/United
Healthcare Workers East filed a petition to represent Schervier Pavilion, a nursing home affiliated with
St. Anthony’s Hospital. Despite the single-facility presumption and the lack of community of interest
between the workers at the nursing home and hospital, the employer insisted on a unit that included
workers at both facilities on the grounds that they were on the same campus. The union reluctantly
agreed with the Employer’s multi-facility unit in order to get a stipulated election agreement.
49 In fact,
because the Board conducts only the most limited review where the parties have stipulated a bargaining
unit,
50 the leverage employers yield often results in bargaining units that would not be found to be
The union lost that election by only 3 votes with 11 challenged ballots; it would have won had the election been held only
among the nursing home employees. See Ron Secours Charity Health Systems, Warwick Healthcare Campus and
ll99SElUlUnitedHealthcare Workers East (Case No. 2-RC-23303) (September 9, 2009).
° See Avecor, Inc. v. NLRB, 931 F.2d 924, 932 (D.C. Cir. 1991) (explaining that review of stipulated unit is limited to
ensuring that the terms do not conflict with fundamental labor principles).
10

appropriate if there were a hearing. For instance, in a hospital election, an employer might insist upon
including some business office clericals in a service and maintenance unit, and the union will acquiesce
in order to expedite the election. The proposed rules will help undo this pathological dynamic by
making the option of holding a pre-election hearing more palatable to the union, thereby forcing
employers to take more reasonable positions. This will result in more fair negotiations for stipulated
election agreements.
Employers can also use the threat of a lengthy pre-election hearing to evade existing guidelines
set by the Regions for election dates. For example, one an SEIU local has had the experience in Region
4 where employers will threaten a pre-election hearing unless the union agrees to an election date
beyond the 45 day period following the filing of the petition. Since the Region will not accept a
stipulated agreement outside that time frame, the only way the union can avoid the hearing and even
greater delay is to withdraw the first petition and refile it later in order to meet the 45 day rule. The
result is that the election date is delayed well beyond the acceptable 45-day timeframe. These kinds of
delay tactics also skew the median figures discussed earlier, in Part l.A., since they do not account for
stipulated elections that are subjected to this kind of employer manipulation.
B. The Statement of Position is a common-sense addition to the pre-election process
The requirement contained in proposed Section 102.63 that the employer articulate its position
on key issues in the Statement of Position, and its corollary in Section 102.66, that only disputed issues
of material fact will be litigated at the hearing will significantly reduce unnecessary litigation. The
Statement of Position is a common-sense document that simply requires the parties to set forth its
position on key issues required to determine whether there is a question of representation and which
workers will vote in the election. This will save the parties from having to litigate issues at the hearing
that are not in dispute, and conserve the parties’—and the Board’s —
resources
to create an evidentiary
record on genuine disputes of material fact. That this process is explicitly modeled on the summary
judgment procedure in Federal Rule of Civil Procedure 56 should put to rest the employer’s due process
concerns.
C. Deferral of eligibility issues affecting less than 20% of the unit is appropriate
The deferral of issues not affecting more than 20% of the unit until after the election is another
sensible proposal that reduces unnecessary pre-election litigation. It reasonably balances the holding of
timely elections and the workers’ interest in knowing the nature and scope of the unit upon which they
will be voting. As SEIU has experienced throughout its organizing history—as illustrated by the
experience of the NCH nurses—the litigation of issues that affect fewer than 20% of the unit can
unnecessarily extend the pre-election hearing process when the outcome of those disputes will not affect
the outcome of the election.
11

It is far more efficient to allow disputed workers to vote by challenged ballot and resolve
questions of status and inclusion in the unit after the election, if necessary. If the union wins, the parties
can negotiate unit inclusion issues through the collective bargaining process, when both parties have an
eye towards the appropriate composition of the bargaining unit (rather than maneuvering to exclude or
include particular workers to skew the election results). Indeed, in our experience, the unit placement of
workers permitted to vote under challenge is almost always resolved, after certification, without the
necessity of returning to the Board for clarification. If the union loses, then it was not necessary to
resolve the issues before the election. In those cases where the challenged ballots affect the outcome of
the election, then they will be resolved in a post-election hearing. Overall, the totality of these pre
election hearing reforms will result in a streamlined pre-election hearing that will focuses the parties
only on the issues necessary for resolution prior to the election.
Employers have advanced two objections: (1) That workers, not knowing the final composition
of the unit upon which they are voting will somehow be deprived of a meaningful right to vote; and (2)
That workers will be deprived of a pre-election determination as to the supervisory status of alleged
supervisors who occupy the disputed positions. We do not believe that either of these objections is well
taken.
1. Workers Will Not Be Deprived of a Meaningful Right to Vote
The 20% rule would not result in an impermissible degree of uncertainty as to the composition of
the unit because the proposed regulation provides for adequate notice to the workers as to the potential
outcomes. Under the proposed rule, workers will be made aware of the minimum scope of the unit, and
of the possibility that the composition of the unit could increase, as well as of the mechanics for
resolution of the question of the inclusion of the disputed classification or individuals. This places the
process squarely within traditionally accepted bounds of applicable caselaw.
Company.
The proposed regulation comports with the Second Circuit’s decision in Sears, Roebuck &
5’ There, because the unit placement of five employees was in dispute, the Notices of Election
for each of two separate units included an attachment explaining that the five employees would be
permitted to vote under challenge and if their unit placement were found to be outcome determinative,
their appropriate placement would be decided in a post-election proceeding. The Second Circuit found
that employees were not deprived of an informed vote because the employees were informed that the
composition of the unit was subject to a potential adjustment, and were informed as to what that
potential adjustment would be.
51
F.2d 52 (2d Cir.1992)
12

The opposition has focused on those cases in which the Board’s Notice of Election may have
misled employees as to the size and scope of the unit upon which they were voting is entirely inapposite.
Significantly, these cases involve situations in which the potential outcomes—i.e., the units that might
ultimately be certified—are not explained in the Notice. For example, in Hamilton Test Systems v.
NLRB
52 the Second Circuit refused to enforce a Board order based on a certification in which the Notice
to Employees informed workers that they were voting for representation in a broad facility-wide unit,
and the Board ultimately certified a more restricted unit of only half the size described in the notice.
Similarly, in NLRB v. Lorimar Productions, Inc.
53 the Ninth Circuit denied enforcement of a Board
order where the underlying certification resulted from an election in which the Notice of Election
described a unit that was broader and much larger than the unit that was ultimately certified. In NLRB v.
Beverly Health and Rehabilitation Services,
54 the Fourth Circuit found that where a Notice of Election
provided a unit description of “[a]ll full-time and regular part time employees, including licensed
practical nurses...” an ultimate certification of a unit excluding licensed practical nurses, who comprised
almost 20% of the unit, would not be enforced because the employees voted upon a unit that had a
different scope and character.
55 In particular, the Fourth Circuit found that a substantial increase from
the size of the unit described in the Notice of Election likely would not have imperiled an informed
choice.
As a practical matter, it is important to note that the Board’s proposal creates no more
uncertainty than that created by a Sonotone
uncertain because of the right of professional employees to vote upon the question of inclusion in a
56 election where the ultimate composition of the unit is
larger unit. The Board has appropriately resisted attempts to read Hamilton Test Systems and its
progeny as requiring a re-tooling of its Sonotone voting procedures
57 because “[bjoth the professional
and non-professional employees know the options available to them as they vote.”
58
Accordingly, the Board’s proposal fully conforms to the basic requirement that workers be
permitted to cast an informed vote in a representation election.
2. No Party Is Prejudiced By Deferring a Determination of Supervisory Status
As an initial matter, it is important to underscore that any employer concern about the lack of a
pre-election hearing somehow precluding the later litigation of supervisory status is simply misplaced.
52
55
F2d 136 (2d Cir. 1984).
771 F2d 1294 (9th Cir. 1985).
1997 U.S. App. LEXIS 21257 (4th Cir. 1997) (unpublished).
1d. at6.
56 Sonotone Corp., 90 NLRB 1236 (1950).
Pratt & Whitney, 327 NLRB 1213 (1999).
58 Id. at 1218.
13

The proposed rule makes clear that “[n]o party shall be precluded, on the grounds that a voter’s
eligibility or inclusion was not contested at the pre-election hearing, from challenging the eligibility of
any voter during the election.” If the votes of alleged supervisors who vote under challenge are
outcome-determinative, their status can be resolved in a challenged ballot proceeding. Where their votes
are not outcome-determinative, their status can be resolved through later negotiations between the
parties or, where necessary, in a unit clarification proceeding.
59
Employers have contended that the lack of a pre-election determination of supervisory status will
impede the ability of an employer to campaign because it will be held responsible for the behavior of
supervisors without having the benefit of a determination as to their status. First, even under the current
system, employers are not entitled to a final determination on supervisory status before the election. To
the contrary, under the current system, an employer must make its own assessment of the likelihood of
ultimate success of its arguments regarding the status of each employee. Under the proposed rule,
employers will continue to make the same calculation when designing their anti-union campaigns.
Allowing individuals whose supervisory status is in dispute to vote under challenge is simply an
extension of a procedure that already exists. When the hearing record is inconclusive as to the
supervisory status of disputed individuals, they have regularly been permitted to vote under challenge.
Courts have approved of this procedure because it “enables the Board to conduct an immediate
election.
6’
Moreover, employers (and unions), even in situations where there is a determination of
60
supervisory status in a pre-election decision and direction of election, are already charged with the
behavior of those supervisors during the entire critical period, not just the portion of the critical period
that follows a decision and direction of election. Under the Board’s holding in Harborside
HealthCare,
62 the issue of whether to set aside an election based on the acts or statements of supervisors
is one that may arise whether the conduct is pro-union or anti-union. Thus, both employers and unions
are charged with the behavior of supervisors. However, that is the case whether an individual found to
be a supervisor has had their status adjudicated prior to an election or not; it is their status and behavior
that determines whether that have tainted an election, not whether they were permitted to vote under
challenge.
New YorkLaw Publishing Co., 336 NLRB No. 93 (1991).
59
Iowa Telephone Co., 341 NLRB 670 (2004).
61 Medical Center at Bowling Green v. NLRB, 712 F.2d 1091 (6th Cir. 1983).
62
NLRB 906 (2004).
14

III. The Board’s Proposed Timelines Are Reasonable And Preserve The Employer’s Ability To
Campaign
While employers argue that shortening the election period will restrict their ability to
communicate their views regarding unions, this is simply not the case. Their many procedural
objections to the reasonableness of the new timelines are simply a pretext for preserving their upper-
hand in organizing campaigns.
A. The proposed rules do not restrict an employer’s ability to speak
Nothing in the proposed regulation prevents employers from legally engaging in a full-throated
campaign about unionization from the first day workers are hired. It is common knowledge that “anti-
union consultants advise employers to communicate their views on unions well before the union arrives
at the doorstep.”
63 Employee orientations, orientation videos, and employee handbooks are often
peppered with anti-union messages.
64 By turning workers against unions from the very outset of their
employment, employers often succeed in preempting organizing efforts altogether.
Moreover, as a practical matter, while employers say they will be disadvantaged because they
may not be immediately aware of an organizing drive, this argument ignores the fact that employers
have the ability—and take full advantage of that opportunity—to communicate with their employees
about the union throughout the work day. It is common practice for employers to weave anti-union
campaigns into the “organizational warp and woof of the enterprise,”
65 Employers are in complete
control of an employee’s daily existence at work and fully utilize their ability to commandeer their
employee’s time to hold captive audience sessions and one-on-one meetings to share their anti-union
message.
66 Thus, any perceived “advantage” that the union has to communicate with employees prior to
the filing of the election petition is easily outweighed by employers’ constant access to its own
employees. 67
Research has shown that workers “are not typically unsophisticated about unionization;” rather
they are “quite aware of the negative features that their employer may point out to them: dues, strikes,
job losses, and so on.”
68 This reflects the fact that management’s opposition to unionization is already
Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 4.
Lafer, Neither Free nor Fair, supra note 6, at 10-11. As an example of the genre, a widely-circulated anti-union orientation
video ( Think Before You Sign ) by the retailer Target is available at htJp/ yotthccmLicF ‘Y_qQanL-4c
Mark Barenberg, Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible
Production, 94 COLUM. L. REV. 753, 941.
See supra notes 3-4.
67 “Employer opposition to unions is constant and cumulative. It begins before the petition is filed and continues steadily
throughout the campaign.” Bronfenbrenner and Warren, supra note 7, at 7.
68 Weiler, supra note 17, at 1815-16.
15

well-known long before election petitions are filed.
Medical Center is illustrative:
69 The testimony of Veronica Tench at St. Vincent
As with many representation elections, our employer learned about our campaign long
before we filed a representation petition. Hospital managers carefully tracked union
activity. The director of human resources asked supervisors and managers to let her
know of any Union activity, such as leafleting, home visits, or talking with interested
workers in the cafeteria. Supervisors began meeting frequently with employees to
advocate against a union. Word got around that the hospital told some workers they’d
have to pay more for parking if they joined the union. A department manager told
employees that the Union only wanted money from them. Even at this early stage, I
don’t think there were any employees who were unaware of St. Vincent’s arguments
about the union. We tried to move forward, but hospital management stopped us from
every angle.
7°
Unfortunately, employers do not limit themselves to the many legal anti-union tactics at their
disposal. Research confirms that it is typical for employers to begin committing unfair labor practices
long before an election petition has even been filed. Indeed, about half of all serious unfair labor
practices occur before the petition is filed.
surveillance and harassment are especially concentrated in the weeks before the petition is filed,”
7’ Studies of ULPs have found that “interrogation,
suggesting that employers quickly learn of union activity in these campaigns.
Trisha Miechur, discussed supra at Part I.C, confirms that employers are well aware of union activity—
and aggressively move to kill any campaign—long before any petition is filed.
72 The experience of
Another illustrative example of an employer’s pre-petition misconduct occurred in late 2002 at
Hillside Acres in Willard, Ohio, where workers at a nursing home attempted to organize with the United
Food and Commercial Workers (UFCW). Over two months before the petition was filed, Hillside
initiated its anti-union campaign at the first sign of union activity by disparately enforcing its solicitation
policy and making an example of one of the union activists.
73 Throughout the next two weeks—and still
over one month before the petition was filed—the employer campaign expanded to other employees,
69 There are also many “third-party organizations [such as the National Right to Work Committee and the Center for Union
Facts] whose raison d’être is providing employees with information about and arguments against unionization.” Sachs,
Enabling Employee Choice, supra note 19, at 708.
° Written Testimony of Veronica Tench, NLRB Public Hearing (July 18, 2011), at 1-2.
71 Bronfenbrenner and Warren, supra note 7, at 4. Both 47% of ULP charges and 47% of all “serious allegations won
through Board or Court decisions or settlements” occurred before the petition was filed.” Id.
72 Bronfenbrenner and Warren, supra note 7, at 7 (emphasis added).
Hillside Acres Inc. d/b/a Liberty Hillside of Willard Inc. and United Food and Commercial Workers Union, local 911,
AFL-CIO, CA-34217,-8CA-34331, 8-CA-34332; Confidential settlement agreements for discharged and disciplined
employees.
16

and committed additional ULPs including interrogation, bribes, onerous assignments for union activity,
and another discipline and discharge of a union activist. In the weeks before the petition was filed, the
company initiated worker surveillance and threatened wage reductions and plant closure. (Hillside did
not allow its campaign to abate once the petition was filed; it fired one employee and disciplining
another in retaliation for their participation in NLRB hearing, and continued to make illegal threats and
promises leading up to the election.)
As the experiences of the workers at Hillside Acres, ManorCare, and St. Vincent’s Medical
Center show, the proposed regulation will not hamper employers from communicating in any way. Both
now and under the proposed rules, employers can “inundate the workplace with anti-union literature
while banning union supporters from doing likewise; supervisors may campaign against unionization all
day, every day.”
74 Similarly employers will continue to be able to force workers to attend mass anti-
union meetings and require pro-union workers to sit quietly without opening their mouths. Under the
law, “[i]f they even ask a question, they can be fired on the spot.”
75 Common techniques of
interrogation such as supervisors repeatedly confronting their subordinates with anti-union statements to
gauge their reaction will be allowed to continue.
76 Employers also possess complete contact information
for all employees from their dates of hire, long before the union will receive the information even under
the proposed rules, and can easily and cheaply campaign against unionization at any time by phone,
mail, email, or in-person.
77 In this context, the claim that workers will be able to hear only the union’s
side of the story if the proposed rules are passed simply cannot pass the laugh test.
Finally, it is important to emphasize that Section 8(c) is not an impediment to this regulation, and
employers’ claims to the contrary are a red herring. It is clearly established that Section 8(c) has no
application to representation cases, only unfair labor practice cases.
78 The Board should also reject any
generalized policy considerations underlying Section 8(c) as a bar to the proposed regulation. The
Supreme Court has recently acknowledged that the Board has regulatory authority over such speech in
special settings such as “imminent [representation] elections.”
79 Indeed, even when the Board has placed
express limits on parties in the election context—the prohibition on captive audience speeches with 24
hours of the election
8° or the ban on inflammatory appeals to racial prejudice
Lafer, Proposed Rule Changes, supra note 26, at 2.
75
1d. at6.
76 Id. at 3 (“In workplace elections. .
—those rules were found
81
. , standard management practice is to have supervisors repeatedly confront their
subordinates with anti-union statements, designed to provoke a reaction; supervisors are required to listen, watch, and grade
employees’ reactions. Under the direction of outside anti-union consultants, supervisors must repeat these confrontations day
after day, until the consultants are confident they have identified the intentions of each voter in the workplace.”).
Lafer, Proposed Rule Changes, supra note 26, at 1-2.
78
Kaljn Construction Co., 321 NLRB 649 (1996); Dal-Tex Optical, 137 NLRB 1782 (1962).
‘
Chamber of Commerce v. Brown, 554 U.S. 60, 74 (2008).
80
Peerless Plywood Co., 107 NLRB 427 (1953)
SewellMfg. Co., 138 NLRB 66(1962).
81
17

to be entirely consistent with Section 8(c).
82 Likewise, nothing in 8(c) guarantees the employer
unlimited amount of time to run an anti-union campaign, as is suggested by opponents of the
proposed regulations.
Further, at the risk of stating the obvious, the proposed rules are entirely consistent with Section
8(c) because it simply does not in any way restrict speech by the employer (or any other party). The
proposed rules place no limits on either when an employer may communicate with employees or the
content of that communication. Accordingly, the proposed regulation is well within the Board’s
authority to regulate elections.
B. The Pre-Hearing and Post-Hearing Timelines Are Reasonable
We are largely in agreement with the Board’s proposed modernization of the rules for the pre
and post-hearing handling of representation matters because we believe that they are reasonable and will
streamline the process by removing unnecessary obstacles to holding the election. Our suggested
improvements are underlined for the convenience of the reader.
1. Notice of Hearing
Proposed Section 102.63(a) Contains no guidance as to how long after a petition is received that
the Notice of Hearing will be served on the parties. In our experience, most Regions serve a Notice of
Hearing promptly upon receipt of a petition. However, for the sake of consistency and uniform
guidance to the Regions, we suggest that this provision be amended to provide that prompt service of the
Notice of Hearing should be a priority of the Region.
2. Timing of the Hearing
Proposed Section 102.63(a) provides that the Regional Director shall set the hearing for a date
seven days from the date of service of the notice absent “special” circumstances. This proposal
formalizes a practice already the norm in a number of Regions, and we believe that it is reasonable. In
Croft Metals, Inc.,
83 the Board adopted as a mandatory requirement that parties to a representation case,
absent unusual circumstances or clear waiver by the parties, receive at least five days’ notice of hearing
excluding Saturdays, Sundays, and holidays. As a practical matter, the proposed rule simply
MidSojith Mfg. Co., 117 NLRB 1786 (1957) (citing Foreman & Clark, Inc. v NLRB, 215 F2.d 396 (9th Cir. 1954)
82
(upholding the Peerless Plywood rule). Moreover, the Supreme Court has noted that Peerless Plywood applies to
representation elections even though a similar rule would violate the First Amendment if applied to political elections.
Virginia State Board ofPharmacy v. Virginia Citizens Consumer Council, 425 US 748, 778, n.3.
83
NLRB 688 (2002).
18

incorporates this requirement and makes it the norm for most representation hearings absent “special”
circumstances.
For consistency, however, we suggest that the phrase “special circumstances” be replaced by
“extraordinary circumstances” to note that any postponement of the commencement of the hearing
requires the same degree of exceptionality as does deviation from the voter list requirements of
102.62(d) and 102.67(j), or a break in continuous days of a hearing as provided in 102.64(c).
In many Regions, under current practices, the parties proceed under the presumption that the
hearing date set forth in the initial notice of hearing will not be the actual date of hearing; i.e. that it will
inevitably be extended upon request. In order for the intent of the proposed rule to be effectuated, the
parties must proceed on the presumption that the hearing date set forth in the initial notice will be the
actual date of hearing. The way to accomplish this necessary change in expectations is to replace
“special circumstances” with “extraordinary circumstances.” This would emphasize that extensions
should only be given in circumstances that go well beyond prosaic scheduling issues or the workloads of
party representatives.
We believe that seven days is a reasonable period for the parties to prepare for a representation
case hearing. First, under refonns instituted by former General Counsel Fred Feinstein, holding
hearings promptly, within 14 days after the petition was filed, became an agency best practice.
84 The
change from 14 days to 7 days will not materially affect employers’ ability to prepare their cases,
especially in light of the compelling policy reasons, set forth in Part I, to expedite the pre-hearing
process. Moreover, as discussed earlier in Part I, employers are well-aware of union organizing
campaigns long before a petition is filed. The image of the blindsided employer caught unaware by an
election petition is simply apocryphal. This is especially the case when the union makes a demand for
recognition under 9(c)(1)(A).
Some representation hearings currently proceed within seven days as a non-adversarial fact
finding process marked by cooperation between the parties. The issues joined are seldom legally
complex. Most preparation for a representation case invokes a review of the job duties of employees,
and the preparation of witnesses to explain those duties. In many cases, the Board’s proposed rule
limiting the presentation of evidence concerning disputes involving less than 20% of the unit will
alleviate the need for most witness preparation. The substantial majority of unit placement issues invoke
fewer than 20% of the employees in a proposed unit; whether that threshold will be approached will
often be readily apparent to the parties.
Office of the General Counsel Memorandum GC 96-2 (February 23, 1996); Office of the General Counsel
Memorandum GC 98-1 (January 26, 1998) (Representation Cases Best Practices Report) at 3.
19

Moreover, as employer representatives repeatedly pointed out at the hearing on the proposed
rule, in the vast majority of cases employers are able to stipulate to an election without the need for a
hearing. The proposed rule further narrows the situations where a hearing would be called for since
hearings often involve questions of eligibility of fewer than 20% of the employees.
We suggest that the email subject line, the fax cover sheet, or the envelope containing a notice of
hearing be marked “urgent” to assure its prompt review.
3. Employer Posting of Initial Notice to Employees of Election
We believe that it is reasonable for employers to be required to immediately post the initial
notice to employees and to distribute it electronically where the employer normally communicates with
its employees in this manner. We note that the Casehandling Manual currently provides in the initial
notice to the employer that the region “requests” that the employer post an enclosed notice to employees
that sets forth a description of employee rights and protections.
makes mandatory what has been requested of employers for years.
4. Employer Statement of Position
85 The proposed Rule provision simply
Proposed Rule 102.63(b) provides for an Employer Statement of Positions to be served by the
time and date specified in the notice unless the date is the same as the hearing date. We believe that it
will facilitate the entry into election agreements, and save Board resources, if the employer is required to
serve its position statement and accompanying employee list at least one full day prior to the scheduled
commencement of the hearing. This will allow the petitioner to evaluate its own unit position in light of
that of the employer and to check prior to the hearing regarding the eligibility of various employees.
5. Submission of Post-Hearing Briefs
We are in agreement with the Board’s preliminary view that post-hearing briefs are not needed in
every representation case and that the parties can generally fully and fairly summarize their positions
through closing oral argument. We believe, however, that hearing officers should have guidence as to
when the filing of brief should be permitted. Accordingly, we recommend that the Board provide in
Rule 102.66(h) the briefs may be filed “only upon special permission of the hearing officer and for
extraordinary circumstances,” and that the hearing officer’s discretion to permit briefs be limited to a
maximum number of 14 days.
85 Casehandling Manual §10009.2.
6. Issuance of Decision and Direction of Election
20

We believe that the ability of the regional director to issue a direction of election prior to the
issuance of a decision, as contemplated by proposed Rule 102.67(b) can be instrumental in facilitating
the conduct of a timely election. Refinement of the factors to be taken into account in determining the
earliest date practicable for the holding of an election is, in our judgment, best left to development
through R-case Board decisions.
7. Service of Voter List
Proposed regulations §102.62(d) and 102.67(j) require the employer to provide a voter list
than the current seven days —
the regional director’s election agreement
approval or election direction. This advances the proposed regulations’ purpose of decreasing the time
from petition to election. However, this purpose may be further advanced by requiring a preliminary
eligible voter list within two days of the petition’s filing. A two day post-petition requirement would, in
within two days —
rather
many cases, render unnecessary the time for the union’s use of a list post-agreement or post-direction,
now a mandatory 10 days.
after
86 Additionally, early list receipt would assist the union in negotiating an
election agreement. Specifically, if the employer insists that a group of employees be explicitly
included or excluded, the union frequently needs to be able to contact the employees at issue to better
determine employee unit placement, which earlier provision of the voter list would greatly facilitate.
Under current practice and the proposed regulations, the employer is and will continue to be
required to produce employee lists early in the proceedings. Casehandling Manual §11025.1 provides
that the employer “should be advised to submit a payroll list,” and is expected to supplement the list
“[a]s the case develops and other unit contentions are made.” While the region uses this list to check the
interest showing, it is not given to the union. The proposed rules would require the employer to provide
the union with an employee list but only if a hearing is necessary;
provided to the Regional Director only.
87 contact information would be
We propose that the employer should include in the preliminary list employees’ contact
information, and should provide the list to the union within two days of receiving the petition. Its failure
to serve and/or file the list should be objectionable conduct. The regulations should assure the union
that, in accepting an election agreement, it would not be bound by what the employer might place in its
preliminary list. And, if the case goes to a pre-election hearing, the employer should be permitted to
submit an amended preliminary list at the beginning of the hearing. With modern computer technology
and electronic communication, the employer cannot reasonably contend that such timeframes are
burdensome because, in most cases, it will simply involve the modification and updating of the
preliminary list submitted along with its Position Statement pursuant to proposed Rule 102.63(b).
86 Casehandling Manual § 11302.1, 11312.1.
87 See Proposed Regulation §102.63(a)(1).
21

With these changes, it would no longer be necessary for the Casehandling Manual to provide that
the union automatically receive time to use the post-direction or post-agreement voter eligibility list
because the union would have access to the relevant information earlier in the process. Given the
current practice of requiring ten days following receipt of the list before scheduling the election, the
regulations should state explicitly that the Regional Director shall not impose any minimum time period
during which the non-employer parties must have the list in their possession. Where, however, the postdirection
or post-agreement list includes employees besides those listed on the preliminary list, any non-
employer party, upon its prompt request after receiving the list, should be able to obtain a postponement
of the election to a date no later than 10 days after the party’s receipt of the list in order to have time to
talk to the newly included employees.
8. Waiver of the Requirement That an Election Not Be Held Until 10- days
After Provision of the Excelsior List
While no specific language to this effect is contained in the proposed rules, the NPRM at 36826
indicates that the Board would permit the waiver by parties whose name appears on the ballot, of the
existing practice, reflected in Model Interiors, Inc.
requirement that an election not be scheduled for a date less than 10-days after provisions of the voter
88 and Casehandling Manual § 11302.1, of the
list. We believe that allowance of such a waiver can facilitate the holding of timely elections so long as
it is clear that a party may never waive provision of the list itself. It would be beneficial to clarify that
Rule 102.62(d) only permits the parties in an election agreement to agree to a different timeframe for
provision of the list, and does not permit the waiver of the list itself or any of its contents. This is
consistent with Section 11312.1 of the Casehandling Manual which provides the “[t]he Board will not
permit waivers of the Excelsior rule with respect to furnishing either names or addresses.”
However, in general, rather than a waiver, we would prefer the provisions described in section 7,
above, in which the employer would provide a preliminary list within two days of the petition’s filing,
and post-direction or post-agreement a non-employer party could obtain additional time to communicate
with employees newly identified on the final list.
9. Time Period for Posting Final Notice to Employees of Elections
Proposed Rule 102.67(i) provides for a reduction from 3 days to 2 days in the minimum posting
period for the Final Notice to Employees of Elections. We believe that this adjustment is reasonable and
will work no prejudice to any employee or to the parties, particularly in light of the Rule’s requirement
324 NLRB 164 (1997).

that employers who customarily communicate with their employees electronically must distribute the
notice electronically.
10. Elimination of the Pre-Election Request for Review
The elimination of the pre-election request for review contained at proposed rule 102.67 is
another sensible reform that eliminates a significant area of delay in scheduling the election. Under the
current system, elections are delayed for 25-30 days following the Regional Director’s decision in order
to allow the Board to rule on any request for review that may be filed.
89 Since these requests are rarely
made and even more rarely granted, the proposed rule strikes the appropriate balance of the parties’
interests by eliminating the pre-election request for review but allowing the parties to appeal any pre
election issues post-election.
11. Election Objections and Offer of Proof
Because we believe that the timely final certification of the results of an election is fundamental
to the establishment of workplace stability, we support the consolidation in proposed Rule 102.69(a) of
the timeline for filing objections to an election or conduct affecting the outcome of an election with an
offer of proof describing the objecting party’s evidence, rather than permitting an additional seven days,
and any subsequent extension, in order to produce a description of the evidence. In doing so, we note
that this move toward timelier certification puts a greater burden on a union than it does upon an
employer because an employer is in control of the worksite and has more tools and resources with which
to gather evidence. Nevertheless, this move toward timelier certification puts no excessive burden upon
unions or employers.
12. Hearing on Objections and/or Challenges
We fully support the timeline provided on proposed Rule 102.69(d) that any hearing held
regarding objections to an election take place within 14 days of the tally of ballots or as soon thereafter
as is practicable. Again, we emphasize that it is not only the election, but the timely certification of the
results and election that is necessary for the promotion of labor relations stability.
D. The Proposed Regulations Should Not be Applied to Decertification Elections
We disagree with the proposal to make the expedited timeframes applicable to decertification
elections. Under the current NLRB procedures, aside from the periods of time covered by the contract
29 C.F.R. 101.21(d)
23

ar or recognition bar, 90 an employer is legally free to withdraw recognition from the union without
having to hold an election first.
majority petition or even simply “unsolicited” statements by employees, it is relatively easy for workers
91 Since employers can withdraw recognition on as simple evidence as a
to get rid of their union if they wish. Thus, there is no analogous crisis of unwanted unions as is facing
workers who wish to form unions, as was detailed earlier in Part I.
Once the employer’s ability to withdraw recognition is eliminated, SEIU would support the
implementation of the expedited timeframes to decertification election proceedings.
IV. Modernization of Excelsior list requirements will promote an informed electorate
The proposed rule’s codification and modernization of voter list requirements will help ensure
fair and free representation elections and a more fully informed electorate. By making it more likely
that employees will have the opportunity to hear from one another and the union, these proposed
changes are sensible updates to Excelsior Underwear, Inc.
1960s and into the 21st Century.
92 and bring the NLRB’s procedures out of the
Under the present rules, employers can frequently delay the date on which union supporters get
access to the list of eligible voters and then provide a list with incomplete information in order to
maximize their ability to run a one-sided campaign.
explained:
93 For example, one former anti-union consultant
I would provide “the minimum information legally required while withholding enough
details to frustrate union officers in their hunt for employees. I never included first
names, for example, only the first initial. I listed the employee’s house number and
street, as required, but always was sure to leave out apartment numbers and street
designations such as Street, Avenue, Drive, or Place. I never included zip codes. Such a
skeletal list guaranteed that some employees would not be found and that the union
would take an inordinately long time finding others.”
94
Generally, labor law prohibits an employer from withdrawing recognition from a union in the first year after it has been
certified, or during the term of a collective bargaining agreement (not exceeding 3 years). See Brooks v. N.L.R.B., 438 U.s.
96 (1954); East Manufacturing Corp. 242 N.L.R.B. 5 (1979). If the union was voluntarily recognized by the employer, the
recognition bar commences 45-days after the workers receive notice of the employer’s recognition of the union. Dana Corp.,
351 NLRB No. 28 (2007).
See Levitz Furniture Co., 333 NLRB 717, 725 (2001); see also N.L.R.B. v. Mullican Lumber & Manufacturing Co., 535
F.3d 271, 2801 (4th Cir. 2008).
92 156 NLRB 1236, 1240 (1966).
Lafer, Proposed Rule Changes, supra note 26, at 2.
Martin Jay Levitt, Confessions of a Union Buster (1993) at 25.
24

The requirement for prompt and complete voter eligibility lists will help to prevent similar tactics from
interfering with communication to employees under the proposed rules.
information —
The modernization of the voter eligibility lists —
is
including
the expansion of required contact
crucial for ensuring an informed electorate. The reasoning that the Supreme Court gave
in 1969 in approving Excelsior applies with equal force to modern means of communication today: the
disclosure of employee information furthers the objective of a fair representation election “by
encouraging an informed employee electorate and by allowing unions the right of access to employees
that management already possesses.”
95 Today, the disclosure of phone numbers, emails, and work shift
information—like the addresses disclosed under Excelsior—is necessary to ensure an informed
electorate. Indeed, “effective opportunities to communicate” are the heart of the Excelsior
requirements.
96 If the purpose of the list—to allow workers to make an informed choice about union
representation—is to be preserved, the 1966 requirements must be expanded to include phone numbers,
email addresses, and work shifts.
Today, employers today routinely communicate with their employees by phone and email, and
this includes conveying their desire that the employees not form a union.
97 Unions, on the other hand,
do not even have this basic contact information. The result is a drastic inequality in the union’s ability
to exchange information with employees. “As a result of [the] one-sided process, recent data show that
in a typical union campaign, fewer than half the employees have even a single home conversation with a
union representative during the course of the entire election season.”
sometimes obtain little or no useful contact information from current Excelsior lists.
98 Indeed, workers and unions
Since the 1966, the ways in which people transmit and receive information has changed
radically. For example, door-to-door solicitations are nearly extinct
99 and first-class USPS mail appears
to be undergoing a decline that is almost as steep, with the current volume being the lowest in twenty-
five years
10° and declines projected to continue.
NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 (1969).
95
101 As of 2010, 39.6 billion emails were being sent every
96 See Excelsior Underwear, Inc., 156 NLRB 1236, 1240 (1966). (“[A]n employee who has had an effective opportunity to
hear the arguments concerning representation is in a better position to make a more fully informed. . . choice... [I]t is
appropriate for us to remove the impediment to communication to which our new rule is directed”).
E See, e.g., Testimony by management attorney Ronald Holland, NLRB Public Hearing (July 18, 2011), at
11:40 a.m (conceding that “many of [his] clients do have employees who have not only workplace email but carry
BlackBerries or phones or cell phones where they can retrieve their email”).
James Rundle, Winning Hearts and Minds in the Era ofEmployee Involvement Programs, in Organizing to Win: New
Research on Union Strategies 219 (Kate Bronfenbrenner ed., 1998).
See Jobs in danger of extinction—Changing times eliminate or drastically alter some livelihoods, Florida Times-Union,
Ari1 29, 2008, at http://jacksonville.corn/tu-online/stories/0429(38/lif273138922.shtml.
° First Class Mail Volume Since 1926 at ww’ ups corn postalhstor pdt FirstCissMaill6to201() pdf
25

day, more than 80 times the number of USPS letters.’°
email.
2 Today, nearly all working age adults use
103 As of 2007, 85% of adults reported owning a cell phone while only 71% of adults reported
owning a home phone.’°
4 These trends are but a few signs that the ability to transmit and receive
information more cheaply and more efficiently over the phone and via email has drastically changed the
way Americans communicate.
Indeed, even where an employer is not deliberately trying to sabotage the union’s ability to
communicate with workers, a mailing address is rarely the best way to reach workers. In particular,
when SEIU locals have organized younger, low-wage workers, we have often found that because these
workers move around so much, they often will use as a mailing address the address of a more stable
relative. Thus, organizers have often knocked on doors only to learn that the address they have for a
worker is actually the address of the worker’s mother, aunt, or grandmother.
In addition to technological changes, the proposed rule also takes into account other ways the
country has changed in the last half-century. Over the past half-century, urban sprawl and commuting
distances have both increased. In major urban centers, it is not unusual for workers to commute more
than one hour in each direction. Thus, a typical hospital worker in Los Angeles might have to drive two
hours in one direction in order to make a home visit to a co-worker. Also, as wages have stagnated,
workers have often responded by working longer hours. The result is that workers are rarely home to
receive house calls. In addition, in the 1960s, many households consisted of a husband who worked and
a wife who was responsible for childcare and homemaking. This arrangement left the working husband
available to engage in extended conversations when a union organizer knocked on the door. Today,
given the large participation of women in the workforce, particularly those with young children, both
spouses typically work and share child-care duties. This means that even if a union organizer happens to
find a worker at home, she is typically cooking dinner and helping her child with homework, making it
impractical to engage in an extended conversation about unionization.
The Board should also clarify that the proposed rules would apply to all employee phone
numbers and email addresses available to employers, both work and personal. Although in some cases
employers may not have access to cell phone numbers or personal email addresses, when they do,
similar access should be given to the union as well. An employee who communicates with a union over
a work email address may be reluctant to speak honestly due to the understandable fear that the
employer can monitor what is being said. Therefore, if personal emails are available to the employer,
101 See “Projecting U.S. Mail Volumes to 2020,” at 2, www.usps.com/strategicplanningtpdf/BCG Narrative.pdf (“The U.S.
Postal Service will experience profound declines in its volumes of mail. .
. over
the next decade... [T}he trajectory for the
next 10 years is one of steady decline, which will not reverse even as the current recession abates.”).
102 “Email v. Snail Mail,” Pingdom blog, http://royal.pingdoin.com/2010/09/29/email-vs-snail-mail-infbgraphic..
103 Pew Internet and American Life Project, Generations 2010, at pewinternet.orgiReports/2Ol0iGeneraiioiis-2010.aspx.
‘° Harris Interactive, A Study about Cell Phone Usage, 2007.
26

they should be provided to the union as well so that employees can communicate with the union in a
more private manner without the possibility of employer surveillance.
The proposed changes to the voter eligibility list requirements are not in conflict with the
Board’s holding in Trustees of Columbia University,’
05 which held that it was not objectionable conduct
for the employer to refuse to provide email addresses for ship crew members who were at sea for most
of the pre-election period. In fact, Trustees of Columbia University merely declined to decide the matter
because various issues raised by the proposal of including email addresses among the Excelsior list
requirements “should be fully briefed and considered before the Board departs from longstanding, wellunderstood
precedent.”°
6 The Board’s rule-making process addresses these concerns.
Although opponents have argued that unions will use the phone numbers and email addresses of
employees as a means to harass and annoy them, there is no evidence to support this claim. In reality,
unions have no incentive to use this contact information to harass employees because this would
undermine the ulimate goal of garnering their votes. As the Fourth Circuit has explained, “It is unlikely
that a union seeking votes to be cast in a secret ballot election would alienate potential support by overly
aggressive campaigning.”
107 State tort and criminal laws would serve as a bulwark against third parties
misusing the list to harass employees outside of the labor context.
Modernizing voter eligibility lists also will not infringe employee privacy rights. As the Fourth
Circuit held, “the mere possibility that employees will be inconvenienced by telephone calls or visits to
their homes is far outweighed by the public interest in an informed electorate.”
108 As a practical matter,
any employee who does not wish to participate in a phone conversation or email exchange with a union
can end the call or delete the email with a press of a button.
The NLRB’s proposed voter eligibility list requirements further the public policy of a fair
election by fostering a fully informed employee electorate. As the Supreme Court has recognized,
fulfillment of this policy rests on “allowing unions the right of access to employees that management
already possesses.”
109 How people receive and transmit information in this country has radically
changed, requiring the Board’s requirements to adapt along with these changes. In the end, it is the
Board’s duty to weigh “the asserted interest of employees in avoiding the problems that union
105 350 NLRB 574 (2007).
107
at 576.
NLP v. J.F. Stevens & Co., 409 F.2d 1207, 1209 (4th Cir. 1969).
‘°8J.P. Stevens & Co., 409 F.2d at 1209.
109 Wyman-Gordon, 394 U.S. at 767 (1969).
27

solicitation may present” against the importance of a fair election process and an informed electorate.
The Board’s proposed rule appropriately balances these interests.
A. § 102.62(d) restriction on use of voter eligibility list is flawed and unworkable
110
Although SEJU strongly supports the proposed revisions to the Excelsior list requirements, we
disagree with the proposed restriction in § 102.62(d) and § 102.67(j) which states: “The parties shall use
the list exclusively for purposes related to the representation proceeding and related Board proceedings.”
(“The Restriction”). The Restriction is unnecessary and ill-defined. It should not be included in the
final rule.
The NPRM is silent about the need for, as well as the parameters of, the Restriction. The
Restriction is stated in a single, short paragraph that has no explication of the meaning of the Restriction,
the problem the Restriction addresses, or a means of enforcement. This is particularly distressing
because the Restriction is a new concept without precedent. No restriction is imposed on parties’ use of
the eligibility list under Excelsior and Wyman-Gordon even though critics have long argued that the
Excelsior list invaded the employers’ rights, infringed employees’ privacy and was subject to abuse by
the union. The NPRM does not explain which of these concerns, or any others, are the motivation
behind the Restriction. A change in Board law of this significance should not be undertaken without a
well-thought Out and articulated argument demonstrating the need for such a change.
Employee privacy does not justify the Restriction. The proposed changes in the voter list that
implicate employee privacy are the provision of the telephone number and e-mail address, if available.
Non-employer parties already receive names and home addresses. Home visits by union staff are
routine in organizing drives and are more intrusive then phone calls or e-mails. The minimal additional
infringement of employee privacy falls far short of justifying a radical departure from Board law, which,
as shown below, will be impracticable to define or enforce.
The Restriction clearly would not apply to information that was obtained independently of the
voter list. But this raises several difficult definitional issues. Non-employer parties accumulate contact
information for many workers before the petition is filed, as they must in order to obtain a sufficient
showing of interest. Pro-union employees often provide contact information for other employees during
organizing drives, and often this contact information is incomplete, such as including a phone number
but no home address. Is it a “use of the list” within the meaning of the Restriction if the union contacts a
worker for whom it had a telephone number, but not a home address or an e-mail address? Is it “use of
the list” if the union could have obtained a phone number prior to receiving the list (because it had a
1d.
110
28

home address and the phone number is listed) but failed to do so? What if the non-employer party
receives the contact information from a co-worker or other source after it receives the voter list?
Determining whether a non-employer party “used the list” would require a fact-intensive inquiry
into what information the non-employer party obtained or could have obtained independently of
receiving the voter list. The Restriction will be almost impossible to enforce if the aggrieved party bears
the burden of proving that the charged party did not obtain the contact information independently.
Typically, the union will not have a record of how it obtained contact information. However, if the
charged party has a burden to demonstrate that it obtained the information independently, then the
Restriction would impose defacto an extremely burdensome record-keeping requirement, in which nonemployer
parties must document when, where and how they obtained contact information. Such a
burden would be close to impossible to meet in large campaigns, where employee lists are compiled
from many different sources, and many different staff, non-employee volunteers and in-plant activists
who work on the campaign at different times.
Additionally, several issues arise concerning the meaning of “exclusively for purposes related to
the representation proceeding and related Board proceedings.” What does this mean during the period
before the representation proceeding is finalized, including while a test of certification is pending? To
win support among workers, unions routinely seek to involve workers in a wide-range of Section 7
protected conduct, such as protests against the employer or solidarity activities with other workers to
show the strength of the labor movement. For the same purposes, unions also seek to involve eligible
voters in activity outside the scope of Section 7, such as involvement in union sports or cultural
activities or political election campaigns. The Board should not be in the business of deciding that some
union campaign tactics are not “for purposes related to the representation proceeding;” it is for a union
to decide what activities build its strength so long as its tactics do not restrain or coerce employees or
otherwise interfere with a free and fair election. Therefore, our view is that, at a minimum, no use of the
list should be deemed to violate the Restriction prior to the final resolution of the question concerning
representation.
If certain communications during the pendency of the representation proceeding would violate
the Restriction, the issue of dual-purpose communication arises. Will any portion of a communication
that has a “not related” purpose under the Restriction taint the communication? If not, what test would
be used: a “but for” test, i.e. the communication would not have occurred but for the “not related”
purpose? Or would a “significant aspect” or “primary aspect” test apply? Any inquiry along these lines
would severely infringe Section 7 rights, since any good organizer discusses the worker’s family
concerns, current political events, the weather, sports or a dozen other topics during a home visit.
The Restriction would essentially prohibit reliance on the voter list for contact information for all
communication with employees after a final determination in the Board proceeding. But unions
29

outinely stay in touch with workers after an election. Unions commonly plan on running a second
election after the election year bar has elapsed if they lose the first election. Does it serve the purposes
of the Act—promoting employee free choice, industrial stability and collective bargaining—to prevent
this communication? As written and if taken literally, the Restriction would apply even if the employee
has given her consent to the Union’s continuing to contact her. Applied in this manner, the Restriction
would significantly infringe employees’ Section 7 rights to hear the union’s message and would raise
serious First Amendment issues.
In the event the Board decides to adopt a version of the Restriction, we cannot conceive of an
appropriate, effective remedy for violations of the Restriction. The First Amendment and the Act
foreclose many potential remedies.
No unfair labor practice finding or remedy is available. Unfair labor practices are those that
restrain, coerce or interfere with the rights of employees. Communications for purposes other than the
Board proceeding do not implicate these concerns. Further, Section 8(c) underlines the impermissibility
of basing an unfair labor practice finding on non-coercive communication.
Conduct may interfere with a fair and free election without constituting an unfair labor practice.
Examples include: the failure to provide an Excelsior list, inflammatory appeals to racial prejudice,
captive audience speeches within 24 hours of the election, and campaigning in the polling area. The
remedy for this type of misconduct is setting aside the election. However, setting aside the election is
not an appropriate remedy for misuse of the list. Misuse of the list does not interfere with a fair and free
election. To the contrary, setting aside an election due to conduct that did not affect the results of the
election would deprive the employees of their fair and free choice. The inappropriateness of setting
aside the election is all the more obvious if the misuse occurred after the representation proceeding was
finalized. A sanction requiring the offending party to surrender and cease using the list would be
meaningless for post-proceeding misconduct, and post-proceeding misconduct appears to be the far
greater danger.
Adopting a specific misconduct procedure for violating the Restriction, akin to proceedings over
ethical misconduct before the Board under NLRB R&R 102.177, would not solve the remedy problem.
Section 102.77 proceedings speak to a different problem and result in a vastly different remedy:
sanctions for the misconduct of party representatives are imposed on the representatives, not the party.
While a representative may be prohibited from practicing before the Board, the party does not have its
rights under the Act curtailed. Such sanctions do not interfere with employees’ Section 7 right to hear
the message of non-employer parties. But a remedy for misuse of the list would have to be imposed on
the misusing party. Possible remedies such as denying the right to petition or to receive a list in a
subsequent case would be inappropriate since they would deny employees their right to freely select or
reject the bargaining representative of their choice.
30

V. The Existing Blocking Charge Doctrine Should Not Be Modified
A. Workers should not be forced to vote in a tainted election
SEJU believes that the Board’s current blocking charge doctrine is essentially sound and should
not be radically modified as the proposed rules seek to do. The basic premise of the blocking charge
doctrine—”to protect the free choice of employees in the election process,”
elections—is as sound now as it was when it was adopted.’
111 by avoiding tainted
12 As the Fifth Circuit observed:
The NLRB has employed its “blocking charge” rule since 1937 . . . . to dismiss
decertification petitions during the pendency of unfair labor practice proceedings or while
the effects of prior unfair labor practices remain undissipated. The reasons for this rule
do not long elude comprehension.”
3
This fundamental reason, which the proposed regulations do not acknowledge, is that the conduct of a
tainted representation election is an inherently coercive event separate and apart from the unfair labor
practices giving rise to the taint. It is the experience of such an election—much more than the
experience of the vote tally—that leaves a residual weight upon the employees that the Act is designed
to protect. The lesson drilled into these workers is the futility of engaging in the election process at all.
Holding an election regardless of the taint, as the proposed rule seeks to do, only reinforces the
impact of the misconduct. The effects of ULPs will be much harder to dissipate among employees who
were required to commit themselves by the solemn act of voting while unlawfully affected by ULPs.
Reversing a decision after a voter has committed herself is far harder than simply convincing her of a
position afresh. In short, once the tainted election has been held, it is virtually impossible for the union
to have a full and complete remedy in a rerun election.
If the blocking charge doctrine is eliminated, the following scenario would occur with some
frequency: an employer unlawfully assists a decertification petition. The unlawful assistance diminishes
support for the union and leads to a tainted vote tally, showing the union to have minority strength. For
several years, the vote tally remains a public fact, while the unfair labor practice and objections are
litigated through the Court of Appeals. The union would face an enormously difficult time maintaining
its strength, a difficulty aggravated by the elimination of the blocking charge doctrine.
“ Casehandling Manual §11730.
112 United States Coal and Coke Company, 3 NLRB 398 (1937).
113 Bishop v. NLRB, 502 F.2d 1024, 1029 (5th CirJ974) (citations omitted); see also Albcrtson ‘S. Incorporated v. NLRB, 161
F.3d 1231, 1239 (10th Cir. 199$) (“We note that courts have approved the blocking procedure as properly within the NLRB’s
statutory authority to conduct representation elections and have held that a ‘blocking’ decision falls under the NLRB ‘s
authority to oversee representation proceedings”)
31

Similarly, a union during an organizing drive would face the choice of cementing the impact of
the ULPs by proceeding to election or of demoralizing its supporters and incurring the six month
disclaimer bar by withdrawing the petition. For example, the story of Veronica Tench and her co
workers at St. Vincent’s Medical Center highlights the need for maintaining the blocking charge
doctrine. Veronica, who serves patients at St. Vincent Medical Center in Los Angeles, testified that she
and her co-workers began their struggle for a voice at work in 1998 and filed an election petition on
January 5, 2000.114 The election was originally scheduled for February 17, 2000, but on February 1, St.
Vincent announced a decision to subcontract 27 respiratory care (RC) therapists out of the 100 person
bargaining unit. St. Vincent management knew that the RC department was the “core” of the Union’s
organizing drive’
15 and that subcontracting them would prevent them from voting in the election. The
RC therapists promptly filed unfair labor practice charges and blocked the election.”
6 Had there been
no blocking charge available, the St. Vincent’s workers would have been forced to vote in an unfair
election, tainted by their employer’s retaliatory decision to subcontract out employees who formed the
well-known “core” of the union’s support. Regardless of whether the votes were counted or impounded,
the tainted election would have cast a long shadow over any subsequent election at St. Vincent.
The fact that, under the Board’s proposal, the affected workers would have to experience the
tally of ballots does little to alleviate the lingering effects of the campaign and the vote. Rather than
having a lesser effect, a tainted election conducted under the imprimatur of the Board has a more
profound impact upon the workers engaged in the process. They will have voted in an election
conducted by their government under the oppressive cloud of unfair labor practices. The fact that the
tally has not been conducted will do little to deter the conclusion that the process is futile. Of course,
elections are re-run in the regular course of events as a result of objections to the conduct of an election.
This is, however, a pale substitute for an election that is held in the first instance free of fear and
coercion. There is no sound policy reason to increase the number of elections that are held in the
shadow of an earlier, flawed election, or to unnecessarily subject workers to the stress and disruption of
an election when the underlying petition may ultimately be dismissed.
It is worth noting that in the context of non-Board conducted polls and elections, the Board has
long recognized that the holding of a tainted election constitutes a separate violation of employee rights
independent of any underlying unfair labor practice.”
7 For example, where an employer hired outside
counsel to conduct an election with all of the procedural features of a board election, but during the
pendency of unfair labor practices, such election constitutes a separate and independent violation of
114 Testimony by Veronica Tench, NLRB Public Hearing (July 18, 2011), at 3:00 p.m.
115 Healthcare Employees Union, Local 399 v. NLRB, 463 F.3d 909, 917 (9th Cir. 2006).
116
St Vincent Med. Ctr., 2007 NLRB LEXIS 61 (Feb. 16, 2007).
117 Strusknes Construction Co., 165 NLRB 1062 (1967).
32

employee rights.
described by one AU as motivated by an attempt to “rub salt into the wounds of the union’s adherents
118 A mock election that is not in compliance with Strusknes standards has been
and convince them of the futility of continued support for the union.”
119
Under current Board policy there is, under appropriate circumstances, an impound option when
last-minute charges are filed prior to a scheduled election date.’
impound option to circumstances that go beyond those to which it is currently available. Thus, the
fundamental changes proposed by the Board to the blocking charge doctrine are not consistent with
preserving employee free choice in NLRB elections.
2° There is no reason to extend the
B. The current blocking charge doctrine promotes settlement of ULPs
Eliminating the blocking charge doctrine will have a detrimental impact on settlement of unfair
labor practices. The current blocking charge doctrine serves to promote settlement. Meritorious “Type
II” charges that would otherwise result in dismissal of a petition, in practice, are generally settled
without an admission of liability by an employer and the petition reinstated.’
21 Likewise, Type I charges
will, upon disposition or settlement of a charge, typically result in reinstatement of a petition.’
22 If the
proposed change is adopted to allow for “vote-and-impound,” the union no longer has the prospect of
having an untainted representation election. Rather, it faces the unappealing prospect of opening of
ballots cast in an election held during the period in which the unfair labor practice allegations had not
yet been remedied through settlement.
The negative impact on settlement of ULPs is particularly true where an employer’s unfair labor
practices are blocking a decertification election. When faced with the reality that its unfair labor
practices are blocking the processing of a decertification election, employers are often quite willing to
resolve unfair labor practices in order to ensure that the decertification election moves forward. Once
the election takes place, the employer would have little incentive to settle the unfair labor practice
charge, particularly if settlement would result in setting aside an election where workers have voted in
favor of decertification.
C. The proposal to adopt the offer of proof procedure for processing ULPs should be rejected
SEIU opposes the Board’s proposed options for processing ULP charges in a blocking charge
context by using the offer of proof procedures for representation cases contained in proposed §
102.66(b) and 102.69(a).
118 Heritage Hall, E.P.I. Corp., 333 NLRB 458, 466 (2001).
Comtronics, 263 NLRB 515, 522 (1982).
120 Casehandling Manual §11731.5.
121 Truserve Corp. 349 NLRB 227 (2007); O.M. 07-69(CH).
122 Casehandling Manual §11730.2; 11734.
33

As an initial matter, currently, “Type II” unfair labor practice charges serve to block a petition
123 The constraints
regardless of whether the charge is filed by a party to the representation case.
proposed regarding the parties are thus largely irrelevant to the most serious unfair labor practice
charges. Moreover, under current procedures, the Regions already have wide latitude in investigating
unfair labor practice charges. Institutional charging parties already have the responsibility to produce all
witnesses under their control.’
24 Charging parties are already obligated to cooperate fully with the
Boards’ agents, and charges are subject to dismissal for lack of cooperation.
125
D. The shifting of the presumption regarding a decision to block an election should be rejected
SEIU rejects the Board’s proposal to continue processing a petition unless a Regional Director
finds probable cause to believe that an unfair labor practice was committed that requires the processing
of a petition to be held in abeyance. This option is objectionable in a number of respects. It shifts the
presumption away from one where a charge can serve to block the processing of a representation case
unless the regional director finds that free choice is possible notwithstanding the charge’
26 to one where
the petition is processed unless and until the regional director determines that an unfair labor practice
requires that a petition be held in abeyance.
In most cases, there will be no bright line for making this determination. Thus, in all cases
where it is as yet uncertain whether an unfair labor practice will taint an election will result in that
election going forward. This will result in a substantial number of workers bring subject to the
inherently coercive effects of a tainted election. This would also result in the squandering of Board
resources in holding elections that are later overturned.
E. The blocking charge policy should not be eliminated entirely
SEIU also opposes the Board’s option, suggested by the dissent in Batty’s Park Place,
totally eliminate the blocking charge policy. In Type I unfair labor practice cases, charging parties can
127 to
be faced with the decision to either file a request to proceed and submit to a timely, but flawed election,
or to await the ultimate outcome of an unfair labor practice proceeding. However, to adopt a policy that
assures that all elections will promptly go forward even in the face of devastating breaches of the law
would make a mockery of the entire election process. The prospect of having a petition ultimately
dismissed after allowing it to result in a flawed election is of scant solace to an organization and its
members who have been required to participate in a tainted election, and to live with the lingering
effects of that experience.
123 Casehandling Manual §11730.3.
124 Casehandling Manual § 10054.1.
‘25 1d
126 Casehandling Manual §11731.2.
127 338 NLRB 443 (2002).
34

F. The blocking charge policy should not be altered through the rulemaking process
SEIU does not believe that the Board’s blocking charge policy should be altered through the
Rulemaking process. That does not suggest, of course, that the policy and its interpretation should not
be subject to evolution and refinement through the development of case law, O.M. Memoranda, and the
periodic updating of the Casehandling Manual. Indeed, the current doctrine, as developed by case law,
is flexible. The Casehandling Manual stresses that “the policy is not intended to be misused by a party
as a tactic to delay the resolution of a question concerning representation. Numerous exceptions
exist in the doctrine.’
29 The exception allowing the Regional Director to determine that “free choice [is]
possible notwithstanding charge” permits the processing of petitions when appropriate by considering
seven factors.
13° When hearings or elections have been scheduled, the RD has significant discretion to
process the petition, including holding the election and either impounding the ballots or not.’
31
The Board has significantly modified the blocking charge doctrine through decisions. For
example, in Trueserve Corp. ,132 the Board determined that a settlement agreement without an admission
of liability does not bar the processing of a petition. In Saint Gobain Abrasives, Inc.,’
33 the Board
required a hearing to resolve whether there was a nexus between the ULPs and the filing of the petition
before dismissal of the petition. Although SEIU does not agree with these decisions and urges their
reversal, they demonstrate that the Board is fully capable of addressing any perceived problems with the
blocking charge doctrine through case by case determination. Accordingly, any necessary changes, in
order to best preserve flexibility, should continue to refine the blocking charge doctrine through case
law, rather than through amendments to the Rules.
VI. Electronic Signatures Should Not Be Adopted In The Rulemaking Process
The Board, at 76 Fed. Reg. 36819, has invited comments on whether the proposed regulations
should expressly permit or proscribe the use of electronic signatures to support a showing of interest.
We support the use of electronic signatures in this manner and believe would be appropriate in light of
the changes in technology and ways in which workers communicate with one another. However, it is
our view is that the Board has the authority to permit electronic signatures by amending its Rules and
Regulations and Statements of Procedure and does not have to go through the rulemaking process, and
therefore should not do so.
128 Casehandling Manual §11730.
129 Casehandling Manual §11731.
130 Casehandling Manual §1173 1.2.
131 Casehandling Manual §11731.4 & 11731.5.
132
NLRB 227 (2007).
133 342 NLRB 434 (2004).
35

The Administrative Procedure Act exempts certain categories of rules generally from notice-and-
comment rulemaking requirements. Public comment is not required when an agency promulgates “rules
of ... procedure or practice.”
34 The National Labor Relations Act itself does not require a showing of
interest to accompany a petition for election, and thus does not address authorization card (or any
requirement of handwritten signatures). Instead, the NLRB has imposed a showing of interest
requirement administratively, and its Rules and Regulations and Statements of Procedure do not
explicitly state that a union authorization card need include a hand-written signature. Section 101.17
only states that evidence of representation “is usually in the form of cards, which must be dated,
authorizing the labor organization to represent the employees or authorizing the petitioner to file a
decertification petition.” Therefore, the Board should simply amend its Rules and Regulations and
Statements of Procedure to specify methods of accepting and authenticating electronic signatures to
support a showing of interest without going through the APA’s notice-and-comment rulemaking
process.
VII. Conclusion
In conclusion, the proposed rulemaking is a modest first step in reforming a broken system that
is currently tilted heavily in favor of employers. As it now stands, most workers who want to form a
union will never get the chance. By protecting workers’ ability to participate in a fair and meaningful
election and vote on their own futures, the NLRB is taking action to begin to restore basic rights we’ve
held dear in this country for decades. We hope the Board considers additional regulations to address the
many other problems in the NLRB election system.
We encourage the Board to issue the proposed regulations as final regulations, with the
improvements discussed above, as quickly as possible.
Respectfully Submitted,
Mary Kay Hen Eliseo Medina
President Secretary Treasurer
134 usc §553(b)(3)(A).
36