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

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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). 32
employee rights. described by one AU as motivated by an attempt to “rub salt into the wounds of the union’s adherents 118 A mock election that is not in compliance with Strusknes standards has been and convince them of the futility of continued support for the union.” 119 Under current Board policy there is, under appropriate circumstances, an impound option when last-minute charges are filed prior to a scheduled election date.’ impound option to circumstances that go beyond those to which it is currently available. Thus, the fundamental changes proposed by the Board to the blocking charge doctrine are not consistent with preserving employee free choice in NLRB elections. 2° There is no reason to extend the B. The current blocking charge doctrine promotes settlement of ULPs Eliminating the blocking charge doctrine will have a detrimental impact on settlement of unfair labor practices. The current blocking charge doctrine serves to promote settlement. Meritorious “Type II” charges that would otherwise result in dismissal of a petition, in practice, are generally settled without an admission of liability by an employer and the petition reinstated.’ 21 Likewise, Type I charges will, upon disposition or settlement of a charge, typically result in reinstatement of a petition.’ 22 If the proposed change is adopted to allow for “vote-and-impound,” the union no longer has the prospect of having an untainted representation election. Rather, it faces the unappealing prospect of opening of ballots cast in an election held during the period in which the unfair labor practice allegations had not yet been remedied through settlement. The negative impact on settlement of ULPs is particularly true where an employer’s unfair labor practices are blocking a decertification election. When faced with the reality that its unfair labor practices are blocking the processing of a decertification election, employers are often quite willing to resolve unfair labor practices in order to ensure that the decertification election moves forward. Once the election takes place, the employer would have little incentive to settle the unfair labor practice charge, particularly if settlement would result in setting aside an election where workers have voted in favor of decertification. C. The proposal to adopt the offer of proof procedure for processing ULPs should be rejected SEIU opposes the Board’s proposed options for processing ULP charges in a blocking charge context by using the offer of proof procedures for representation cases contained in proposed § 102.66(b) and 102.69(a). 118 Heritage Hall, E.P.I. Corp., 333 NLRB 458, 466 (2001). Comtronics, 263 NLRB 515, 522 (1982). 120 Casehandling Manual §11731.5. 121 Truserve Corp. 349 NLRB 227 (2007); O.M. 07-69(CH). 122 Casehandling Manual §11730.2; 11734. 33
Page 1 and 2: I Stronger Together MARY KAY HENRY
Page 3 and 4: • one-on-one meetings with worker
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formal comments to the Board's proposed rule. - SEIU

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