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

Similarly, a union during an organizing drive would face the choice of cementing the impact of
the ULPs by proceeding to election or of demoralizing its supporters and incurring the six month
disclaimer bar by withdrawing the petition. For example, the story of Veronica Tench and her co
workers at St. Vincent’s Medical Center highlights the need for maintaining the blocking charge
doctrine. Veronica, who serves patients at St. Vincent Medical Center in Los Angeles, testified that she
and her co-workers began their struggle for a voice at work in 1998 and filed an election petition on
January 5, 2000.114 The election was originally scheduled for February 17, 2000, but on February 1, St.
Vincent announced a decision to subcontract 27 respiratory care (RC) therapists out of the 100 person
bargaining unit. St. Vincent management knew that the RC department was the “core” of the Union’s
organizing drive’
15 and that subcontracting them would prevent them from voting in the election. The
RC therapists promptly filed unfair labor practice charges and blocked the election.”
6 Had there been
no blocking charge available, the St. Vincent’s workers would have been forced to vote in an unfair
election, tainted by their employer’s retaliatory decision to subcontract out employees who formed the
well-known “core” of the union’s support. Regardless of whether the votes were counted or impounded,
the tainted election would have cast a long shadow over any subsequent election at St. Vincent.
The fact that, under the Board’s proposal, the affected workers would have to experience the
tally of ballots does little to alleviate the lingering effects of the campaign and the vote. Rather than
having a lesser effect, a tainted election conducted under the imprimatur of the Board has a more
profound impact upon the workers engaged in the process. They will have voted in an election
conducted by their government under the oppressive cloud of unfair labor practices. The fact that the
tally has not been conducted will do little to deter the conclusion that the process is futile. Of course,
elections are re-run in the regular course of events as a result of objections to the conduct of an election.
This is, however, a pale substitute for an election that is held in the first instance free of fear and
coercion. There is no sound policy reason to increase the number of elections that are held in the
shadow of an earlier, flawed election, or to unnecessarily subject workers to the stress and disruption of
an election when the underlying petition may ultimately be dismissed.
It is worth noting that in the context of non-Board conducted polls and elections, the Board has
long recognized that the holding of a tainted election constitutes a separate violation of employee rights
independent of any underlying unfair labor practice.”
7 For example, where an employer hired outside
counsel to conduct an election with all of the procedural features of a board election, but during the
pendency of unfair labor practices, such election constitutes a separate and independent violation of
114 Testimony by Veronica Tench, NLRB Public Hearing (July 18, 2011), at 3:00 p.m.
115 Healthcare Employees Union, Local 399 v. NLRB, 463 F.3d 909, 917 (9th Cir. 2006).
116
St Vincent Med. Ctr., 2007 NLRB LEXIS 61 (Feb. 16, 2007).
117 Strusknes Construction Co., 165 NLRB 1062 (1967).
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