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

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have to commit ULPs, which intimidate workers and convince them that supporting the union is not worth sacrificing their jobs. A. Employers’ ability to manufacture disputes at pre-election hearings allows them to delay elections and enables further lawbreaking Critical to understanding the employers’ success in deploying these anti-union tactics is the Board’s current prolonged election timetable, which provides them with ample opportunities to manufacture frivolous disputes and prolong the pre-election process.’ anti-unionization consultants 2° as well as empirical studies 9 Indeed, manuals prepared by 21 emphasize the vital importance of protracted election periods to the destruction of union support. And the Board’s own election statistics demonstrate how successful employers have been. Although the NLRB reports that the median time between the petition and election is 38 days, many workers experience far longer delays due to the current hearing process. 22 When the employer insists on a pre-election hearing, the time from petition to election increases dramatically, to an average of 124 days. 23 Although most elections are held in less time pursuant to stipulations, “the mere fact that the NLRB allows parties the ability to delay cases for an extended period simply by forcing a hearing skews the process in employers’ favor.” 24 Anti-union consultants counsel employers to demand a hearing and challenge everything, even pursuing “groundless legal challenges that are clearly doomed to failure” in order to buy more time to engage in anti-union campaign. 25 Once delay has been achieved, week by week, coercive employer actions wear workers down. Workers who support unionization are methodically identified, intimidated and, in some cases, discharged. “For employers, every day of delay is a day in which managers are free to communicate 19 Benjamin I. Sachs, Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing, 123 Harv. L. Rev. 655, 666-67 (2010). 20 See e.g. Lafer, Neither Free nor Fair, supra note 6, at 45 fig.A (excerpted from an anti-union campaign manual, Robert Lewis and William Krupman, Winning NLRB Elections: Management’s Strategy and Preventive Programs, 2nd ed., (New York: Practicing Law Institute, 1979)). 21 See, e.g., Weiler, supra note 17, at 1777 n. 24 (1983). 22 NLRB Summary of Operaiions (Fiscal Year 201Q) at 5. Logan et. al report a median figure of 39 days based on their analysis of data obtained by FOIA request. See Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 1 n.4. 23 Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 1-2. Although the NLRB’s annual report does not report the median time from petition to election when there is a pre-election hearing, we approximate the median would be 62-67 days by taking the median time from petition to RD-directed election (37 days) and adding 25-30 days, per the current Statement of Procedures which provide that elections should be delayed for this period to allow for a party to file a request for review with the Board (this period would be eliminated under the proposed rule). See 29 CFR § 101.21(d). 24 Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 2. 25 Lafer, Neither Free nor Fair, supra note 6, at 24. 4
anti-union messages to subordinates, eight hours a day, while union supporters are restricted to brief lunchtime conversations” during the work day. pro-union majorities have been eroded by discriminatory discharges and intimidation. As former U.S. 26 Thus, by the time the Board holds the election, initial Senator Arlen Specter put it, “the interminable delays leading to the resolution of unfair labor practices or representation cases at the NLRB render any poll of union support virtually meaningless by the time the case is resolved.” 27 Research shows that “[t]he longer the delay between the filing of the petition and the election date, the more likely it is that the NLRB will charge employers with illegal activity.” 28 This often creates a vicious circle: the longer the delay, the more illegal employer conduct, which in turn leads to ULP charges against employers, thereby delaying the election even further. This not a new problem. The collapse of workers’ rights under the present representation election system has been documented for years. 29 According to the 1994 Final Report of the Dunlop Commission, a non-partisan commission that included labor, employers and academics, the evidence “demonstrated conclusively that current labor law is not achieving its stated intent of encouraging collective bargaining and protecting workers’ rights to choose whether or not to be represented at their workplace.” 3° Noting that “[a] lengthy, political-style election campaign serves no useful purpose in the labor-management context” 31 and that “a system is poorly designed if it gives parties an incentive and opportunity to seek delay for its own sake,” 32 the Dunlop Commission recommended some of the exact same measures the NLRB is now proposing. These included “[pjroviding for prompt elections after the NLRB determines that sufficient employees have expressed a desire to be represented by a union” and resolving some “challenges to bargaining units and other legal disputes” after elections are held. 33 The dysfunctional nature of the United States’ NLRB-supervised election system is particularly notable because it is out of sync with international norms. neighbor, Canada, demonstrates that the union election process can take place expeditiously. Four of 34 Indeed, the experience of our democratic 26 Gordon Lafer, Economic Policy Institute, Proposed Rule Changes by Labor Board Would Make Workplace Elections More Democratic 8 (EPI Policy Memorandum #188, July 18, 2011) [hereinafter Lafer, Proposed Rule Changes]. 27 Arlen Specter & Eric S. Nguyen, Policy Essay: Representation Without Intimidation: Securing Workers’ Right To Choose Under the National Labor Relations Act, 45 HARv. J. ON LEGI5. 311, 312 (2008). 28 Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 2. 29 See, e.g., Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards (August 2000), http://www.unhcr.orclrefworld/docid/3ae6a87h4.html. 30 Dunlop Commission On The Future Of Worker-Management Relations: Final Report 9 (1994), http://digha1commons.iIr.cornelIedu/ci/vicwcon1cnt.cgi?article=1004&context=keY workplace. 31 1d. at 41. 32 1d at 42 33 1d. at 10. The Universal Declaration of Human Rights, adopted in 1948, states that “[e]veryone has the right to form a to join trade unions for the protection of his interests.” G.A, Rcs. 217A (Ill). U.N. Doc. Aj81() at 71, Art. 23t41. Likewise, the International Covenant on Civil and Political Rights, a document ratified by the United States, states that “everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests XlLLN GA\ORjupp (No jJt U N D399 Ui\LSLj2L 5
Page 1 and 2: I Stronger Together MARY KAY HENRY
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formal comments to the Board's proposed rule. - SEIU

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