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