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

As an initial matter, currently, “Type II” unfair labor practice charges serve to block a petition
123 The constraints
regardless of whether the charge is filed by a party to the representation case.
proposed regarding the parties are thus largely irrelevant to the most serious unfair labor practice
charges. Moreover, under current procedures, the Regions already have wide latitude in investigating
unfair labor practice charges. Institutional charging parties already have the responsibility to produce all
witnesses under their control.’
24 Charging parties are already obligated to cooperate fully with the
Boards’ agents, and charges are subject to dismissal for lack of cooperation.
125
D. The shifting of the presumption regarding a decision to block an election should be rejected
SEIU rejects the Board’s proposal to continue processing a petition unless a Regional Director
finds probable cause to believe that an unfair labor practice was committed that requires the processing
of a petition to be held in abeyance. This option is objectionable in a number of respects. It shifts the
presumption away from one where a charge can serve to block the processing of a representation case
unless the regional director finds that free choice is possible notwithstanding the charge’
26 to one where
the petition is processed unless and until the regional director determines that an unfair labor practice
requires that a petition be held in abeyance.
In most cases, there will be no bright line for making this determination. Thus, in all cases
where it is as yet uncertain whether an unfair labor practice will taint an election will result in that
election going forward. This will result in a substantial number of workers bring subject to the
inherently coercive effects of a tainted election. This would also result in the squandering of Board
resources in holding elections that are later overturned.
E. The blocking charge policy should not be eliminated entirely
SEIU also opposes the Board’s option, suggested by the dissent in Batty’s Park Place,
totally eliminate the blocking charge policy. In Type I unfair labor practice cases, charging parties can
127 to
be faced with the decision to either file a request to proceed and submit to a timely, but flawed election,
or to await the ultimate outcome of an unfair labor practice proceeding. However, to adopt a policy that
assures that all elections will promptly go forward even in the face of devastating breaches of the law
would make a mockery of the entire election process. The prospect of having a petition ultimately
dismissed after allowing it to result in a flawed election is of scant solace to an organization and its
members who have been required to participate in a tainted election, and to live with the lingering
effects of that experience.
123 Casehandling Manual §11730.3.
124 Casehandling Manual § 10054.1.
‘25 1d
126 Casehandling Manual §11731.2.
127 338 NLRB 443 (2002).
34