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

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)
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