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

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The proposed rule makes clear that “[n]o party shall be precluded, on the grounds that a voter’s eligibility or inclusion was not contested at the pre-election hearing, from challenging the eligibility of any voter during the election.” If the votes of alleged supervisors who vote under challenge are outcome-determinative, their status can be resolved in a challenged ballot proceeding. Where their votes are not outcome-determinative, their status can be resolved through later negotiations between the parties or, where necessary, in a unit clarification proceeding. 59 Employers have contended that the lack of a pre-election determination of supervisory status will impede the ability of an employer to campaign because it will be held responsible for the behavior of supervisors without having the benefit of a determination as to their status. First, even under the current system, employers are not entitled to a final determination on supervisory status before the election. To the contrary, under the current system, an employer must make its own assessment of the likelihood of ultimate success of its arguments regarding the status of each employee. Under the proposed rule, employers will continue to make the same calculation when designing their anti-union campaigns. Allowing individuals whose supervisory status is in dispute to vote under challenge is simply an extension of a procedure that already exists. When the hearing record is inconclusive as to the supervisory status of disputed individuals, they have regularly been permitted to vote under challenge. Courts have approved of this procedure because it “enables the Board to conduct an immediate election. 6’ Moreover, employers (and unions), even in situations where there is a determination of 60 supervisory status in a pre-election decision and direction of election, are already charged with the behavior of those supervisors during the entire critical period, not just the portion of the critical period that follows a decision and direction of election. Under the Board’s holding in Harborside HealthCare, 62 the issue of whether to set aside an election based on the acts or statements of supervisors is one that may arise whether the conduct is pro-union or anti-union. Thus, both employers and unions are charged with the behavior of supervisors. However, that is the case whether an individual found to be a supervisor has had their status adjudicated prior to an election or not; it is their status and behavior that determines whether that have tainted an election, not whether they were permitted to vote under challenge. New YorkLaw Publishing Co., 336 NLRB No. 93 (1991). 59 Iowa Telephone Co., 341 NLRB 670 (2004). 61 Medical Center at Bowling Green v. NLRB, 712 F.2d 1091 (6th Cir. 1983). 62 NLRB 906 (2004). 14
III. The Board’s Proposed Timelines Are Reasonable And Preserve The Employer’s Ability To Campaign While employers argue that shortening the election period will restrict their ability to communicate their views regarding unions, this is simply not the case. Their many procedural objections to the reasonableness of the new timelines are simply a pretext for preserving their upper- hand in organizing campaigns. A. The proposed rules do not restrict an employer’s ability to speak Nothing in the proposed regulation prevents employers from legally engaging in a full-throated campaign about unionization from the first day workers are hired. It is common knowledge that “anti- union consultants advise employers to communicate their views on unions well before the union arrives at the doorstep.” 63 Employee orientations, orientation videos, and employee handbooks are often peppered with anti-union messages. 64 By turning workers against unions from the very outset of their employment, employers often succeed in preempting organizing efforts altogether. Moreover, as a practical matter, while employers say they will be disadvantaged because they may not be immediately aware of an organizing drive, this argument ignores the fact that employers have the ability—and take full advantage of that opportunity—to communicate with their employees about the union throughout the work day. It is common practice for employers to weave anti-union campaigns into the “organizational warp and woof of the enterprise,” 65 Employers are in complete control of an employee’s daily existence at work and fully utilize their ability to commandeer their employee’s time to hold captive audience sessions and one-on-one meetings to share their anti-union message. 66 Thus, any perceived “advantage” that the union has to communicate with employees prior to the filing of the election petition is easily outweighed by employers’ constant access to its own employees. 67 Research has shown that workers “are not typically unsophisticated about unionization;” rather they are “quite aware of the negative features that their employer may point out to them: dues, strikes, job losses, and so on.” 68 This reflects the fact that management’s opposition to unionization is already Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 4. Lafer, Neither Free nor Fair, supra note 6, at 10-11. As an example of the genre, a widely-circulated anti-union orientation video ( Think Before You Sign ) by the retailer Target is available at htJp/ yotthccmLicF ‘Y_qQanL-4c Mark Barenberg, Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production, 94 COLUM. L. REV. 753, 941. See supra notes 3-4. 67 “Employer opposition to unions is constant and cumulative. It begins before the petition is filed and continues steadily throughout the campaign.” Bronfenbrenner and Warren, supra note 7, at 7. 68 Weiler, supra note 17, at 1815-16. 15
Page 1 and 2: I Stronger Together MARY KAY HENRY
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formal comments to the Board's proposed rule. - SEIU

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