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

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to be entirely consistent with Section 8(c). 82 Likewise, nothing in 8(c) guarantees the employer unlimited amount of time to run an anti-union campaign, as is suggested by opponents of the proposed regulations. Further, at the risk of stating the obvious, the proposed rules are entirely consistent with Section 8(c) because it simply does not in any way restrict speech by the employer (or any other party). The proposed rules place no limits on either when an employer may communicate with employees or the content of that communication. Accordingly, the proposed regulation is well within the Board’s authority to regulate elections. B. The Pre-Hearing and Post-Hearing Timelines Are Reasonable We are largely in agreement with the Board’s proposed modernization of the rules for the pre and post-hearing handling of representation matters because we believe that they are reasonable and will streamline the process by removing unnecessary obstacles to holding the election. Our suggested improvements are underlined for the convenience of the reader. 1. Notice of Hearing Proposed Section 102.63(a) Contains no guidance as to how long after a petition is received that the Notice of Hearing will be served on the parties. In our experience, most Regions serve a Notice of Hearing promptly upon receipt of a petition. However, for the sake of consistency and uniform guidance to the Regions, we suggest that this provision be amended to provide that prompt service of the Notice of Hearing should be a priority of the Region. 2. Timing of the Hearing Proposed Section 102.63(a) provides that the Regional Director shall set the hearing for a date seven days from the date of service of the notice absent “special” circumstances. This proposal formalizes a practice already the norm in a number of Regions, and we believe that it is reasonable. In Croft Metals, Inc., 83 the Board adopted as a mandatory requirement that parties to a representation case, absent unusual circumstances or clear waiver by the parties, receive at least five days’ notice of hearing excluding Saturdays, Sundays, and holidays. As a practical matter, the proposed rule simply MidSojith Mfg. Co., 117 NLRB 1786 (1957) (citing Foreman & Clark, Inc. v NLRB, 215 F2.d 396 (9th Cir. 1954) 82 (upholding the Peerless Plywood rule). Moreover, the Supreme Court has noted that Peerless Plywood applies to representation elections even though a similar rule would violate the First Amendment if applied to political elections. Virginia State Board ofPharmacy v. Virginia Citizens Consumer Council, 425 US 748, 778, n.3. 83 NLRB 688 (2002). 18
incorporates this requirement and makes it the norm for most representation hearings absent “special” circumstances. For consistency, however, we suggest that the phrase “special circumstances” be replaced by “extraordinary circumstances” to note that any postponement of the commencement of the hearing requires the same degree of exceptionality as does deviation from the voter list requirements of 102.62(d) and 102.67(j), or a break in continuous days of a hearing as provided in 102.64(c). In many Regions, under current practices, the parties proceed under the presumption that the hearing date set forth in the initial notice of hearing will not be the actual date of hearing; i.e. that it will inevitably be extended upon request. In order for the intent of the proposed rule to be effectuated, the parties must proceed on the presumption that the hearing date set forth in the initial notice will be the actual date of hearing. The way to accomplish this necessary change in expectations is to replace “special circumstances” with “extraordinary circumstances.” This would emphasize that extensions should only be given in circumstances that go well beyond prosaic scheduling issues or the workloads of party representatives. We believe that seven days is a reasonable period for the parties to prepare for a representation case hearing. First, under refonns instituted by former General Counsel Fred Feinstein, holding hearings promptly, within 14 days after the petition was filed, became an agency best practice. 84 The change from 14 days to 7 days will not materially affect employers’ ability to prepare their cases, especially in light of the compelling policy reasons, set forth in Part I, to expedite the pre-hearing process. Moreover, as discussed earlier in Part I, employers are well-aware of union organizing campaigns long before a petition is filed. The image of the blindsided employer caught unaware by an election petition is simply apocryphal. This is especially the case when the union makes a demand for recognition under 9(c)(1)(A). Some representation hearings currently proceed within seven days as a non-adversarial fact finding process marked by cooperation between the parties. The issues joined are seldom legally complex. Most preparation for a representation case invokes a review of the job duties of employees, and the preparation of witnesses to explain those duties. In many cases, the Board’s proposed rule limiting the presentation of evidence concerning disputes involving less than 20% of the unit will alleviate the need for most witness preparation. The substantial majority of unit placement issues invoke fewer than 20% of the employees in a proposed unit; whether that threshold will be approached will often be readily apparent to the parties. Office of the General Counsel Memorandum GC 96-2 (February 23, 1996); Office of the General Counsel Memorandum GC 98-1 (January 26, 1998) (Representation Cases Best Practices Report) at 3. 19
Page 1 and 2: I Stronger Together MARY KAY HENRY
Page 3 and 4: • one-on-one meetings with worker
Page 5 and 6: anti-union messages to subordinates
Page 7 and 8: C. Long delays and ineffective reme
Page 9 and 10: esidents and their families. Manage
Page 11 and 12: appropriate if there were a hearing
Page 13 and 14: The opposition has focused on those
Page 15 and 16: III. The Board’s Proposed Timelin
Page 17: and committed additional ULPs inclu
Page 21 and 22: We believe that the ability of the
Page 23 and 24: that employers who customarily comm
Page 25 and 26: The requirement for prompt and comp
Page 27 and 28: they should be provided to the unio
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Page 31 and 32: V. The Existing Blocking Charge Doc
Page 33 and 34: employee rights. described by one A
Page 35 and 36: F. The blocking charge policy shoul

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

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