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

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solicitation may present” against the importance of a fair election process and an informed electorate. The Board’s proposed rule appropriately balances these interests. A. § 102.62(d) restriction on use of voter eligibility list is flawed and unworkable 110 Although SEJU strongly supports the proposed revisions to the Excelsior list requirements, we disagree with the proposed restriction in § 102.62(d) and § 102.67(j) which states: “The parties shall use the list exclusively for purposes related to the representation proceeding and related Board proceedings.” (“The Restriction”). The Restriction is unnecessary and ill-defined. It should not be included in the final rule. The NPRM is silent about the need for, as well as the parameters of, the Restriction. The Restriction is stated in a single, short paragraph that has no explication of the meaning of the Restriction, the problem the Restriction addresses, or a means of enforcement. This is particularly distressing because the Restriction is a new concept without precedent. No restriction is imposed on parties’ use of the eligibility list under Excelsior and Wyman-Gordon even though critics have long argued that the Excelsior list invaded the employers’ rights, infringed employees’ privacy and was subject to abuse by the union. The NPRM does not explain which of these concerns, or any others, are the motivation behind the Restriction. A change in Board law of this significance should not be undertaken without a well-thought Out and articulated argument demonstrating the need for such a change. Employee privacy does not justify the Restriction. The proposed changes in the voter list that implicate employee privacy are the provision of the telephone number and e-mail address, if available. Non-employer parties already receive names and home addresses. Home visits by union staff are routine in organizing drives and are more intrusive then phone calls or e-mails. The minimal additional infringement of employee privacy falls far short of justifying a radical departure from Board law, which, as shown below, will be impracticable to define or enforce. The Restriction clearly would not apply to information that was obtained independently of the voter list. But this raises several difficult definitional issues. Non-employer parties accumulate contact information for many workers before the petition is filed, as they must in order to obtain a sufficient showing of interest. Pro-union employees often provide contact information for other employees during organizing drives, and often this contact information is incomplete, such as including a phone number but no home address. Is it a “use of the list” within the meaning of the Restriction if the union contacts a worker for whom it had a telephone number, but not a home address or an e-mail address? Is it “use of the list” if the union could have obtained a phone number prior to receiving the list (because it had a 1d. 110 28
home address and the phone number is listed) but failed to do so? What if the non-employer party receives the contact information from a co-worker or other source after it receives the voter list? Determining whether a non-employer party “used the list” would require a fact-intensive inquiry into what information the non-employer party obtained or could have obtained independently of receiving the voter list. The Restriction will be almost impossible to enforce if the aggrieved party bears the burden of proving that the charged party did not obtain the contact information independently. Typically, the union will not have a record of how it obtained contact information. However, if the charged party has a burden to demonstrate that it obtained the information independently, then the Restriction would impose defacto an extremely burdensome record-keeping requirement, in which nonemployer parties must document when, where and how they obtained contact information. Such a burden would be close to impossible to meet in large campaigns, where employee lists are compiled from many different sources, and many different staff, non-employee volunteers and in-plant activists who work on the campaign at different times. Additionally, several issues arise concerning the meaning of “exclusively for purposes related to the representation proceeding and related Board proceedings.” What does this mean during the period before the representation proceeding is finalized, including while a test of certification is pending? To win support among workers, unions routinely seek to involve workers in a wide-range of Section 7 protected conduct, such as protests against the employer or solidarity activities with other workers to show the strength of the labor movement. For the same purposes, unions also seek to involve eligible voters in activity outside the scope of Section 7, such as involvement in union sports or cultural activities or political election campaigns. The Board should not be in the business of deciding that some union campaign tactics are not “for purposes related to the representation proceeding;” it is for a union to decide what activities build its strength so long as its tactics do not restrain or coerce employees or otherwise interfere with a free and fair election. Therefore, our view is that, at a minimum, no use of the list should be deemed to violate the Restriction prior to the final resolution of the question concerning representation. If certain communications during the pendency of the representation proceeding would violate the Restriction, the issue of dual-purpose communication arises. Will any portion of a communication that has a “not related” purpose under the Restriction taint the communication? If not, what test would be used: a “but for” test, i.e. the communication would not have occurred but for the “not related” purpose? Or would a “significant aspect” or “primary aspect” test apply? Any inquiry along these lines would severely infringe Section 7 rights, since any good organizer discusses the worker’s family concerns, current political events, the weather, sports or a dozen other topics during a home visit. The Restriction would essentially prohibit reliance on the voter list for contact information for all communication with employees after a final determination in the Board proceeding. But unions 29
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
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Page 13 and 14: The opposition has focused on those
Page 15 and 16: III. The Board’s Proposed Timelin
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Page 19 and 20: incorporates this requirement and m
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: they should be provided to the unio
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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