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

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ar or recognition bar, 90 an employer is legally free to withdraw recognition from the union without having to hold an election first. majority petition or even simply “unsolicited” statements by employees, it is relatively easy for workers 91 Since employers can withdraw recognition on as simple evidence as a to get rid of their union if they wish. Thus, there is no analogous crisis of unwanted unions as is facing workers who wish to form unions, as was detailed earlier in Part I. Once the employer’s ability to withdraw recognition is eliminated, SEIU would support the implementation of the expedited timeframes to decertification election proceedings. IV. Modernization of Excelsior list requirements will promote an informed electorate The proposed rule’s codification and modernization of voter list requirements will help ensure fair and free representation elections and a more fully informed electorate. By making it more likely that employees will have the opportunity to hear from one another and the union, these proposed changes are sensible updates to Excelsior Underwear, Inc. 1960s and into the 21st Century. 92 and bring the NLRB’s procedures out of the Under the present rules, employers can frequently delay the date on which union supporters get access to the list of eligible voters and then provide a list with incomplete information in order to maximize their ability to run a one-sided campaign. explained: 93 For example, one former anti-union consultant I would provide “the minimum information legally required while withholding enough details to frustrate union officers in their hunt for employees. I never included first names, for example, only the first initial. I listed the employee’s house number and street, as required, but always was sure to leave out apartment numbers and street designations such as Street, Avenue, Drive, or Place. I never included zip codes. Such a skeletal list guaranteed that some employees would not be found and that the union would take an inordinately long time finding others.” 94 Generally, labor law prohibits an employer from withdrawing recognition from a union in the first year after it has been certified, or during the term of a collective bargaining agreement (not exceeding 3 years). See Brooks v. N.L.R.B., 438 U.s. 96 (1954); East Manufacturing Corp. 242 N.L.R.B. 5 (1979). If the union was voluntarily recognized by the employer, the recognition bar commences 45-days after the workers receive notice of the employer’s recognition of the union. Dana Corp., 351 NLRB No. 28 (2007). See Levitz Furniture Co., 333 NLRB 717, 725 (2001); see also N.L.R.B. v. Mullican Lumber & Manufacturing Co., 535 F.3d 271, 2801 (4th Cir. 2008). 92 156 NLRB 1236, 1240 (1966). Lafer, Proposed Rule Changes, supra note 26, at 2. Martin Jay Levitt, Confessions of a Union Buster (1993) at 25. 24
The requirement for prompt and complete voter eligibility lists will help to prevent similar tactics from interfering with communication to employees under the proposed rules. information — The modernization of the voter eligibility lists — is including the expansion of required contact crucial for ensuring an informed electorate. The reasoning that the Supreme Court gave in 1969 in approving Excelsior applies with equal force to modern means of communication today: the disclosure of employee information furthers the objective of a fair representation election “by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses.” 95 Today, the disclosure of phone numbers, emails, and work shift information—like the addresses disclosed under Excelsior—is necessary to ensure an informed electorate. Indeed, “effective opportunities to communicate” are the heart of the Excelsior requirements. 96 If the purpose of the list—to allow workers to make an informed choice about union representation—is to be preserved, the 1966 requirements must be expanded to include phone numbers, email addresses, and work shifts. Today, employers today routinely communicate with their employees by phone and email, and this includes conveying their desire that the employees not form a union. 97 Unions, on the other hand, do not even have this basic contact information. The result is a drastic inequality in the union’s ability to exchange information with employees. “As a result of [the] one-sided process, recent data show that in a typical union campaign, fewer than half the employees have even a single home conversation with a union representative during the course of the entire election season.” sometimes obtain little or no useful contact information from current Excelsior lists. 98 Indeed, workers and unions Since the 1966, the ways in which people transmit and receive information has changed radically. For example, door-to-door solicitations are nearly extinct 99 and first-class USPS mail appears to be undergoing a decline that is almost as steep, with the current volume being the lowest in twenty- five years 10° and declines projected to continue. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 (1969). 95 101 As of 2010, 39.6 billion emails were being sent every 96 See Excelsior Underwear, Inc., 156 NLRB 1236, 1240 (1966). (“[A]n employee who has had an effective opportunity to hear the arguments concerning representation is in a better position to make a more fully informed. . . choice... [I]t is appropriate for us to remove the impediment to communication to which our new rule is directed”). E See, e.g., Testimony by management attorney Ronald Holland, NLRB Public Hearing (July 18, 2011), at 11:40 a.m (conceding that “many of [his] clients do have employees who have not only workplace email but carry BlackBerries or phones or cell phones where they can retrieve their email”). James Rundle, Winning Hearts and Minds in the Era ofEmployee Involvement Programs, in Organizing to Win: New Research on Union Strategies 219 (Kate Bronfenbrenner ed., 1998). See Jobs in danger of extinction—Changing times eliminate or drastically alter some livelihoods, Florida Times-Union, Ari1 29, 2008, at http://jacksonville.corn/tu-online/stories/0429(38/lif273138922.shtml. ° First Class Mail Volume Since 1926 at ww’ ups corn postalhstor pdt FirstCissMaill6to201() pdf 25
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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