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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outinely stay in <strong>to</strong>uch with workers after an election. Unions commonly plan on running a second<br />
election after <strong>the</strong> election year bar has elapsed if <strong>the</strong>y lose <strong>the</strong> first election. Does it serve <strong>the</strong> purposes<br />
of <strong>the</strong> Act—promoting employee free choice, industrial stability and collective bargaining—<strong>to</strong> prevent<br />
this communication? As written and if taken literally, <strong>the</strong> Restriction would apply even if <strong>the</strong> employee<br />
has given her consent <strong>to</strong> <strong>the</strong> Union’s continuing <strong>to</strong> contact her. Applied in this manner, <strong>the</strong> Restriction<br />
would significantly infringe employees’ Section 7 rights <strong>to</strong> hear <strong>the</strong> union’s message and would raise<br />
serious First Amendment issues.<br />
In <strong>the</strong> event <strong>the</strong> Board decides <strong>to</strong> adopt a version of <strong>the</strong> Restriction, we cannot conceive of an<br />
appropriate, effective remedy for violations of <strong>the</strong> Restriction. The First Amendment and <strong>the</strong> Act<br />
foreclose many potential remedies.<br />
No unfair labor practice finding or remedy is available. Unfair labor practices are those that<br />
restrain, coerce or interfere with <strong>the</strong> rights of employees. Communications for purposes o<strong>the</strong>r than <strong>the</strong><br />
Board proceeding do not implicate <strong>the</strong>se concerns. Fur<strong>the</strong>r, Section 8(c) underlines <strong>the</strong> impermissibility<br />
of basing an unfair labor practice finding on non-coercive communication.<br />
Conduct may interfere with a fair and free election without constituting an unfair labor practice.<br />
Examples include: <strong>the</strong> failure <strong>to</strong> provide an Excelsior list, inflamma<strong>to</strong>ry appeals <strong>to</strong> racial prejudice,<br />
captive audience speeches within 24 hours of <strong>the</strong> election, and campaigning in <strong>the</strong> polling area. The<br />
remedy for this type of misconduct is setting aside <strong>the</strong> election. However, setting aside <strong>the</strong> election is<br />
not an appropriate remedy for misuse of <strong>the</strong> list. Misuse of <strong>the</strong> list does not interfere with a fair and free<br />
election. To <strong>the</strong> contrary, setting aside an election due <strong>to</strong> conduct that did not affect <strong>the</strong> results of <strong>the</strong><br />
election would deprive <strong>the</strong> employees of <strong>the</strong>ir fair and free choice. The inappropriateness of setting<br />
aside <strong>the</strong> election is all <strong>the</strong> more obvious if <strong>the</strong> misuse occurred after <strong>the</strong> representation proceeding was<br />
finalized. A sanction requiring <strong>the</strong> offending party <strong>to</strong> surrender and cease using <strong>the</strong> list would be<br />
meaningless for post-proceeding misconduct, and post-proceeding misconduct appears <strong>to</strong> be <strong>the</strong> far<br />
greater danger.<br />
Adopting a specific misconduct procedure for violating <strong>the</strong> Restriction, akin <strong>to</strong> proceedings over<br />
ethical misconduct before <strong>the</strong> Board under NLRB R&R 102.177, would not solve <strong>the</strong> remedy problem.<br />
Section 102.77 proceedings speak <strong>to</strong> a different problem and result in a vastly different remedy:<br />
sanctions for <strong>the</strong> misconduct of party representatives are imposed on <strong>the</strong> representatives, not <strong>the</strong> party.<br />
While a representative may be prohibited from practicing before <strong>the</strong> Board, <strong>the</strong> party does not have its<br />
rights under <strong>the</strong> Act curtailed. Such sanctions do not interfere with employees’ Section 7 right <strong>to</strong> hear<br />
<strong>the</strong> message of non-employer parties. But a remedy for misuse of <strong>the</strong> list would have <strong>to</strong> be imposed on<br />
<strong>the</strong> misusing party. Possible remedies such as denying <strong>the</strong> right <strong>to</strong> petition or <strong>to</strong> receive a list in a<br />
subsequent case would be inappropriate since <strong>the</strong>y would deny employees <strong>the</strong>ir right <strong>to</strong> freely select or<br />
reject <strong>the</strong> bargaining representative of <strong>the</strong>ir choice.<br />
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