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

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These proposed regulatory reforms are quite timely because American workers are currently in the midst of the worst economic crisis since the Great Depression. While corporate profits are soaring, the middle class is disappearing as wages are stagnant, pensions are non-existent, and more and more workers do not have access to health insurance, let alone paid sick days. As the 2007 House of Representatives report on “Strengthening America’s Middle Class” found, the decline of unionization and the associated decline in wages and rise in economic insecurity have had devastating effects on the size and security of the American middle class. was the private sector solution to the Great Depression. Promoting the rights of workers to unionize 3 The Wagner Act recognized that collective bargaining would reduce the bargaining and wage inequality that “tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between 4 American workers in our depressed economy need unions now more than ever. industries.” For these reasons, SEIU believes the NLRB’s proposed rules are modest, yet important steps in modernizing the NLRB election process and hopes that they will open up the opportunity for more workers to make free, informed, and timely choices about forming unions. To be sure, there are many other aspects of the NLRB election process that need reform, but the proposed rules are important first steps in addressing those aspects of the system that are amenable to regulatory reform. In our comments, we will discuss: (I) why there is an urgent need for reforming the broken NLRB election system; (II) why the proposed rules are an important step in fixing in reforming this system; (III) why the proposed timelines are reasonable and preserve the employer’s ability to campaign against the union; (IV) why modernization of the Excelsior list requirements is a critical component of reform; (IV) why the NLRB should not modify the current blocking charge doctrine, as proposed; and (VI) why electronic signatures should not be adopted in the rulemaking process. I. The Current NLRB Election System is Broken The current NLRB election system gives employers too many opportunities to hijack the election process, greatly delaying the election date and extending the time for the employer to commit ULPs and intimidate workers. In more than 95% of union elections, employers engage in anti-union campaigns, which typically include: 5 forced attendance at captive audience meetings, with an average of 10-12 such meetings per campaign; 6 “Strengthening America’s Middle Class,” H. Rep. No. 110-23, text accompanying notes 25-43 (2007); see also “Union Decline Accounts for Much of the Rise in Wage Inequality,” American Sociological Review (August 2011). 29 U.S.C. §151. Bronfenbrenner, No Holds Barred, supra note 2 at 10, tbl. 3. 6 Gordon Lafer, American Rights at Work, Neither Free nor Fair: The Subversion of Democracy Under National Labor Relations Board Elections 42 tbl. 2 (2007) [hereinafter Lafer, Neither Free nor Fair].
• one-on-one meetings with workers, usually on a weekly basis, to threaten job loss, wage and benefit cuts, and plant closings; 7 • threats of cuts to wages and benefits; • threats of plant closings; • discriminatory discharge of union supporters;’° and • other discrimination against union supporters. 9 8 11 Overall, employers have ULP charges filed against them in nearly half of all union elections.’ 2 This reflects a concerted decision by employers to “focus ... on more coercive and punitive tactics designed to intensely monitor and punish union activity.” “peak again just before the election,” suggesting that the petition-to-election period is a critical time for employer-committed ULPs. 14 3 And, discrimination and retaliation for union activity There is no question that these anti-worker tactics have been effective. Workers are 24% less likely to secure union representation when an employer mounts an anti-union campaign.’ 5 This is because delaying the election date only gives employers additional opportunities to engage in more of these aggressive and intimidating tactics. Decades of research have shown that the prolonged exposure of workers to employer interference that occurs when Board elections are delayed influences the way workers vote. 16 One study found that the probability of unionization drops by more than 2% for each week of delay between the petition and the vote. 17 Even controlling for other factors, “there is a considerable causal relationship between the length of election delay and the number of NLRB complaints filed against employers.” 18 The more time that elapses, the more opportunities employers Bronfenbrenner, No Holds Barred, supra note 2, at 25; Kate Bronfenbrenner and Dorian Warren, “The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence,” Cornell University and Columbia University 7, available at http://iserp.columhia.edu/sites/defaultifiles/working papers/working paper cover 201 1-0 1-final.pdf. 8 Bronfenbrenner, No Holds Barred, supra note 2, at 2. 91d. 10 1d. Id. at 10 tbl.3. 12 John Logan, Erin Johansson, and Ryan Lamare, U.C. Berkeley, New Data: NLRB Process Fails to Ensure a Fair Vote,” 3 (June 2011), http://laborcentcr.berkclcv.edu1ahorlaw/NLRB Process June2011 .pdf 13 Bronfenbrenner, No Holds Barred, supra note 2, at 2. ‘41d. 15 Id. at 10 tbl.3; see also id. at 13-14 (“[M]ost of the more extreme employer tactics—supervisor one-on-ones at least weekly, police walk-throughs, plant closing threats, promises, bribes, or assisting the anti-union committee—are associated with union win rates several percentage points (between 5 to 7) lower than in campaigns where they are not used.”) 16 See, e.g., Michele Campolieti, Chris Riddell, and Sara Slinn, Labor Law Reform and the Role of Delay in Union Organizing: Empirical Evidence from Canada, 61 IND. & LAB. REL. REv. 32 (2007). 17 Paul Weiler, Promises To Keep: Securing Workers’ Rights to Self-Organization Under the NLRA, 96 HARV. L. REV. 1769, at 1777 n. 24 (1983). Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 1. 3
Page 1: I Stronger Together MARY KAY HENRY
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formal comments to the Board's proposed rule. - SEIU

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