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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III. The Board’s Proposed Timelines Are Reasonable And Preserve The Employer’s Ability To<br />
Campaign<br />
While employers argue that shortening <strong>the</strong> election period will restrict <strong>the</strong>ir ability <strong>to</strong><br />
communicate <strong>the</strong>ir views regarding unions, this is simply not <strong>the</strong> case. Their many procedural<br />
objections <strong>to</strong> <strong>the</strong> reasonableness of <strong>the</strong> new timelines are simply a pretext for preserving <strong>the</strong>ir upper-<br />
hand in organizing campaigns.<br />
A. The <strong>proposed</strong> <strong>rule</strong>s do not restrict an employer’s ability <strong>to</strong> speak<br />
Nothing in <strong>the</strong> <strong>proposed</strong> regulation prevents employers from legally engaging in a full-throated<br />
campaign about unionization from <strong>the</strong> first day workers are hired. It is common knowledge that “anti-<br />
union consultants advise employers <strong>to</strong> communicate <strong>the</strong>ir views on unions well before <strong>the</strong> union arrives<br />
at <strong>the</strong> doorstep.”<br />
63 Employee orientations, orientation videos, and employee handbooks are often<br />
peppered with anti-union messages.<br />
64 By turning workers against unions from <strong>the</strong> very outset of <strong>the</strong>ir<br />
employment, employers often succeed in preempting organizing efforts al<strong>to</strong>ge<strong>the</strong>r.<br />
Moreover, as a practical matter, while employers say <strong>the</strong>y will be disadvantaged because <strong>the</strong>y<br />
may not be immediately aware of an organizing drive, this argument ignores <strong>the</strong> fact that employers<br />
have <strong>the</strong> ability—and take full advantage of that opportunity—<strong>to</strong> communicate with <strong>the</strong>ir employees<br />
about <strong>the</strong> union throughout <strong>the</strong> work day. It is common practice for employers <strong>to</strong> weave anti-union<br />
campaigns in<strong>to</strong> <strong>the</strong> “organizational warp and woof of <strong>the</strong> enterprise,”<br />
65 Employers are in complete<br />
control of an employee’s daily existence at work and fully utilize <strong>the</strong>ir ability <strong>to</strong> commandeer <strong>the</strong>ir<br />
employee’s time <strong>to</strong> hold captive audience sessions and one-on-one meetings <strong>to</strong> share <strong>the</strong>ir anti-union<br />
message.<br />
66 Thus, any perceived “advantage” that <strong>the</strong> union has <strong>to</strong> communicate with employees prior <strong>to</strong><br />
<strong>the</strong> filing of <strong>the</strong> election petition is easily outweighed by employers’ constant access <strong>to</strong> its own<br />
employees. 67<br />
Research has shown that workers “are not typically unsophisticated about unionization;” ra<strong>the</strong>r<br />
<strong>the</strong>y are “quite aware of <strong>the</strong> negative features that <strong>the</strong>ir employer may point out <strong>to</strong> <strong>the</strong>m: dues, strikes,<br />
job losses, and so on.”<br />
68 This reflects <strong>the</strong> fact that management’s opposition <strong>to</strong> unionization is already<br />
Logan et. al, NLRB Process Fails <strong>to</strong> Ensure a Fair Vote, supra note 12, at 4.<br />
Lafer, Nei<strong>the</strong>r Free nor Fair, supra note 6, at 10-11. As an example of <strong>the</strong> genre, a widely-circulated anti-union orientation<br />
video ( Think Before You Sign ) by <strong>the</strong> retailer Target is available at htJp/ yotthccmLicF ‘Y_qQanL-4c<br />
Mark Barenberg, Democracy and Domination in <strong>the</strong> Law of Workplace Cooperation: From Bureaucratic <strong>to</strong> Flexible<br />
Production, 94 COLUM. L. REV. 753, 941.<br />
See supra notes 3-4.<br />
67 “Employer opposition <strong>to</strong> unions is constant and cumulative. It begins before <strong>the</strong> petition is filed and continues steadily<br />
throughout <strong>the</strong> campaign.” Bronfenbrenner and Warren, supra note 7, at 7.<br />
68 Weiler, supra note 17, at 1815-16.<br />
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