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