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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have <strong>to</strong> commit ULPs, which intimidate workers and convince <strong>the</strong>m that supporting <strong>the</strong> union is not<br />
worth sacrificing <strong>the</strong>ir jobs.<br />
A. Employers’ ability <strong>to</strong> manufacture disputes at pre-election hearings allows <strong>the</strong>m <strong>to</strong><br />
delay elections and enables fur<strong>the</strong>r lawbreaking<br />
Critical <strong>to</strong> understanding <strong>the</strong> employers’ success in deploying <strong>the</strong>se anti-union tactics is <strong>the</strong><br />
Board’s current prolonged election timetable, which provides <strong>the</strong>m with ample opportunities <strong>to</strong><br />
manufacture frivolous disputes and prolong <strong>the</strong> pre-election process.’<br />
anti-unionization consultants<br />
2° as well as empirical studies<br />
9 Indeed, manuals prepared by<br />
21 emphasize <strong>the</strong> vital importance of<br />
protracted election periods <strong>to</strong> <strong>the</strong> destruction of union support. And <strong>the</strong> Board’s own election statistics<br />
demonstrate how successful employers have been.<br />
Although <strong>the</strong> NLRB reports that <strong>the</strong> median time between <strong>the</strong> petition and election is 38 days,<br />
many workers experience far longer delays due <strong>to</strong> <strong>the</strong> current hearing process.<br />
22 When <strong>the</strong> employer<br />
insists on a pre-election hearing, <strong>the</strong> time from petition <strong>to</strong> election increases dramatically, <strong>to</strong> an average<br />
of 124 days. 23 Although most elections are held in less time pursuant <strong>to</strong> stipulations, “<strong>the</strong> mere fact<br />
that <strong>the</strong> NLRB allows parties <strong>the</strong> ability <strong>to</strong> delay cases for an extended period simply by forcing a<br />
hearing skews <strong>the</strong> process in employers’ favor.”<br />
24 Anti-union consultants counsel employers <strong>to</strong> demand<br />
a hearing and challenge everything, even pursuing “groundless legal challenges that are clearly doomed<br />
<strong>to</strong> failure” in order <strong>to</strong> buy more time <strong>to</strong> engage in anti-union campaign.<br />
25<br />
Once delay has been achieved, week by week, coercive employer actions wear workers down.<br />
Workers who support unionization are methodically identified, intimidated and, in some cases,<br />
discharged. “For employers, every day of delay is a day in which managers are free <strong>to</strong> communicate<br />
19 Benjamin I. Sachs, Enabling Employee Choice: A Structural Approach <strong>to</strong> <strong>the</strong> Rules of Union Organizing, 123 Harv. L.<br />
Rev. 655, 666-67 (2010).<br />
20<br />
See e.g. Lafer, Nei<strong>the</strong>r Free nor Fair, supra note 6, at 45 fig.A (excerpted from an anti-union campaign manual, Robert<br />
Lewis and William Krupman, Winning NLRB Elections: Management’s Strategy and Preventive Programs, 2nd ed., (New<br />
York: Practicing Law Institute, 1979)).<br />
21 See, e.g., Weiler, supra note 17, at 1777 n. 24 (1983).<br />
22 NLRB Summary of Operaiions (Fiscal Year 201Q) at 5. Logan et. al report a median figure of 39 days based on <strong>the</strong>ir<br />
analysis of data obtained by FOIA request. See Logan et. al, NLRB Process Fails <strong>to</strong> Ensure a Fair Vote, supra note 12, at 1<br />
n.4.<br />
23 Logan et. al, NLRB Process Fails <strong>to</strong> Ensure a Fair Vote, supra note 12, at 1-2. Although <strong>the</strong> NLRB’s annual report does<br />
not report <strong>the</strong> median time from petition <strong>to</strong> election when <strong>the</strong>re is a pre-election hearing, we approximate <strong>the</strong> median would<br />
be 62-67 days by taking <strong>the</strong> median time from petition <strong>to</strong> RD-directed election (37 days) and adding 25-30 days, per <strong>the</strong><br />
current Statement of Procedures which provide that elections should be delayed for this period <strong>to</strong> allow for a party <strong>to</strong> file a<br />
request for review with <strong>the</strong> Board (this period would be eliminated under <strong>the</strong> <strong>proposed</strong> <strong>rule</strong>). See 29 CFR § 101.21(d).<br />
24 Logan et. al, NLRB Process Fails <strong>to</strong> Ensure a Fair Vote, supra note 12, at 2.<br />
25 Lafer, Nei<strong>the</strong>r Free nor Fair, supra note 6, at 24.<br />
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