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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home address and <strong>the</strong> phone number is listed) but failed <strong>to</strong> do so? What if <strong>the</strong> non-employer party<br />
receives <strong>the</strong> contact information from a co-worker or o<strong>the</strong>r source after it receives <strong>the</strong> voter list?<br />
Determining whe<strong>the</strong>r a non-employer party “used <strong>the</strong> list” would require a fact-intensive inquiry<br />
in<strong>to</strong> what information <strong>the</strong> non-employer party obtained or could have obtained independently of<br />
receiving <strong>the</strong> voter list. The Restriction will be almost impossible <strong>to</strong> enforce if <strong>the</strong> aggrieved party bears<br />
<strong>the</strong> burden of proving that <strong>the</strong> charged party did not obtain <strong>the</strong> contact information independently.<br />
Typically, <strong>the</strong> union will not have a record of how it obtained contact information. However, if <strong>the</strong><br />
charged party has a burden <strong>to</strong> demonstrate that it obtained <strong>the</strong> information independently, <strong>the</strong>n <strong>the</strong><br />
Restriction would impose defac<strong>to</strong> an extremely burdensome record-keeping requirement, in which nonemployer<br />
parties must document when, where and how <strong>the</strong>y obtained contact information. Such a<br />
burden would be close <strong>to</strong> impossible <strong>to</strong> meet in large campaigns, where employee lists are compiled<br />
from many different sources, and many different staff, non-employee volunteers and in-plant activists<br />
who work on <strong>the</strong> campaign at different times.<br />
Additionally, several issues arise concerning <strong>the</strong> meaning of “exclusively for purposes related <strong>to</strong><br />
<strong>the</strong> representation proceeding and related Board proceedings.” What does this mean during <strong>the</strong> period<br />
before <strong>the</strong> representation proceeding is finalized, including while a test of certification is pending? To<br />
win support among workers, unions routinely seek <strong>to</strong> involve workers in a wide-range of Section 7<br />
protected conduct, such as protests against <strong>the</strong> employer or solidarity activities with o<strong>the</strong>r workers <strong>to</strong><br />
show <strong>the</strong> strength of <strong>the</strong> labor movement. For <strong>the</strong> same purposes, unions also seek <strong>to</strong> involve eligible<br />
voters in activity outside <strong>the</strong> scope of Section 7, such as involvement in union sports or cultural<br />
activities or political election campaigns. The Board should not be in <strong>the</strong> business of deciding that some<br />
union campaign tactics are not “for purposes related <strong>to</strong> <strong>the</strong> representation proceeding;” it is for a union<br />
<strong>to</strong> decide what activities build its strength so long as its tactics do not restrain or coerce employees or<br />
o<strong>the</strong>rwise interfere with a free and fair election. Therefore, our view is that, at a minimum, no use of <strong>the</strong><br />
list should be deemed <strong>to</strong> violate <strong>the</strong> Restriction prior <strong>to</strong> <strong>the</strong> final resolution of <strong>the</strong> question concerning<br />
representation.<br />
If certain communications during <strong>the</strong> pendency of <strong>the</strong> representation proceeding would violate<br />
<strong>the</strong> Restriction, <strong>the</strong> issue of dual-purpose communication arises. Will any portion of a communication<br />
that has a “not related” purpose under <strong>the</strong> Restriction taint <strong>the</strong> communication? If not, what test would<br />
be used: a “but for” test, i.e. <strong>the</strong> communication would not have occurred but for <strong>the</strong> “not related”<br />
purpose? Or would a “significant aspect” or “primary aspect” test apply? Any inquiry along <strong>the</strong>se lines<br />
would severely infringe Section 7 rights, since any good organizer discusses <strong>the</strong> worker’s family<br />
concerns, current political events, <strong>the</strong> wea<strong>the</strong>r, sports or a dozen o<strong>the</strong>r <strong>to</strong>pics during a home visit.<br />
The Restriction would essentially prohibit reliance on <strong>the</strong> voter list for contact information for all<br />
communication with employees after a final determination in <strong>the</strong> Board proceeding. But unions<br />
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