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

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outinely stay in touch with workers after an election. Unions commonly plan on running a second election after the election year bar has elapsed if they lose the first election. Does it serve the purposes of the Act—promoting employee free choice, industrial stability and collective bargaining—to prevent this communication? As written and if taken literally, the Restriction would apply even if the employee has given her consent to the Union’s continuing to contact her. Applied in this manner, the Restriction would significantly infringe employees’ Section 7 rights to hear the union’s message and would raise serious First Amendment issues. In the event the Board decides to adopt a version of the Restriction, we cannot conceive of an appropriate, effective remedy for violations of the Restriction. The First Amendment and the Act foreclose many potential remedies. No unfair labor practice finding or remedy is available. Unfair labor practices are those that restrain, coerce or interfere with the rights of employees. Communications for purposes other than the Board proceeding do not implicate these concerns. Further, Section 8(c) underlines the impermissibility of basing an unfair labor practice finding on non-coercive communication. Conduct may interfere with a fair and free election without constituting an unfair labor practice. Examples include: the failure to provide an Excelsior list, inflammatory appeals to racial prejudice, captive audience speeches within 24 hours of the election, and campaigning in the polling area. The remedy for this type of misconduct is setting aside the election. However, setting aside the election is not an appropriate remedy for misuse of the list. Misuse of the list does not interfere with a fair and free election. To the contrary, setting aside an election due to conduct that did not affect the results of the election would deprive the employees of their fair and free choice. The inappropriateness of setting aside the election is all the more obvious if the misuse occurred after the representation proceeding was finalized. A sanction requiring the offending party to surrender and cease using the list would be meaningless for post-proceeding misconduct, and post-proceeding misconduct appears to be the far greater danger. Adopting a specific misconduct procedure for violating the Restriction, akin to proceedings over ethical misconduct before the Board under NLRB R&R 102.177, would not solve the remedy problem. Section 102.77 proceedings speak to a different problem and result in a vastly different remedy: sanctions for the misconduct of party representatives are imposed on the representatives, not the party. While a representative may be prohibited from practicing before the Board, the party does not have its rights under the Act curtailed. Such sanctions do not interfere with employees’ Section 7 right to hear the message of non-employer parties. But a remedy for misuse of the list would have to be imposed on the misusing party. Possible remedies such as denying the right to petition or to receive a list in a subsequent case would be inappropriate since they would deny employees their right to freely select or reject the bargaining representative of their choice. 30
V. The Existing Blocking Charge Doctrine Should Not Be Modified A. Workers should not be forced to vote in a tainted election SEJU believes that the Board’s current blocking charge doctrine is essentially sound and should not be radically modified as the proposed rules seek to do. The basic premise of the blocking charge doctrine—”to protect the free choice of employees in the election process,” elections—is as sound now as it was when it was adopted.’ 111 by avoiding tainted 12 As the Fifth Circuit observed: The NLRB has employed its “blocking charge” rule since 1937 . . . . to dismiss decertification petitions during the pendency of unfair labor practice proceedings or while the effects of prior unfair labor practices remain undissipated. The reasons for this rule do not long elude comprehension.” 3 This fundamental reason, which the proposed regulations do not acknowledge, is that the conduct of a tainted representation election is an inherently coercive event separate and apart from the unfair labor practices giving rise to the taint. It is the experience of such an election—much more than the experience of the vote tally—that leaves a residual weight upon the employees that the Act is designed to protect. The lesson drilled into these workers is the futility of engaging in the election process at all. Holding an election regardless of the taint, as the proposed rule seeks to do, only reinforces the impact of the misconduct. The effects of ULPs will be much harder to dissipate among employees who were required to commit themselves by the solemn act of voting while unlawfully affected by ULPs. Reversing a decision after a voter has committed herself is far harder than simply convincing her of a position afresh. In short, once the tainted election has been held, it is virtually impossible for the union to have a full and complete remedy in a rerun election. If the blocking charge doctrine is eliminated, the following scenario would occur with some frequency: an employer unlawfully assists a decertification petition. The unlawful assistance diminishes support for the union and leads to a tainted vote tally, showing the union to have minority strength. For several years, the vote tally remains a public fact, while the unfair labor practice and objections are litigated through the Court of Appeals. The union would face an enormously difficult time maintaining its strength, a difficulty aggravated by the elimination of the blocking charge doctrine. “ Casehandling Manual §11730. 112 United States Coal and Coke Company, 3 NLRB 398 (1937). 113 Bishop v. NLRB, 502 F.2d 1024, 1029 (5th CirJ974) (citations omitted); see also Albcrtson ‘S. Incorporated v. NLRB, 161 F.3d 1231, 1239 (10th Cir. 199$) (“We note that courts have approved the blocking procedure as properly within the NLRB’s statutory authority to conduct representation elections and have held that a ‘blocking’ decision falls under the NLRB ‘s authority to oversee representation proceedings”) 31
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 18: and committed additional ULPs inclu
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 and 28: they should be provided to the unio
Page 29: home address and the phone number i
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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