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

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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
Page 1 and 2: I Stronger Together MARY KAY HENRY
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Page 5 and 6: anti-union messages to subordinates
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Page 9 and 10: esidents and their families. Manage
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Page 15 and 16: III. The Board’s Proposed Timelin
Page 17 and 18: and committed additional ULPs inclu
Page 19 and 20: incorporates this requirement and m
Page 21 and 22: We believe that the ability of the
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Page 25 and 26: The requirement for prompt and comp
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Page 31 and 32: V. The Existing Blocking Charge Doc
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formal comments to the Board's proposed rule. - SEIU

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