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

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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
Page 1 and 2: I Stronger Together MARY KAY HENRY
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formal comments to the Board's proposed rule. - SEIU

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