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

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Canada’s largest provinces (Ontario, Quebec, British Columbia, and Alberta) conduct union elections in only five to ten days, depending on the jurisdiction. 35 Their experience shows that it is possible to have a streamlined union election process that allows workers to vote without unnecessary delay. B. These procedural flaws undermine the NLRA’s statutory purpose The current system’s regulatory delays also chip away at employee confidence in the Board and undercut the NLRA’s statutory purposes of removing “recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes” and promoting industrial peace. Instead of promoting peace, a lengthy election period allows employers to wage a “war of attrition” and promotes what the Dunlop Commission deemed a “highly conflictual” and “highly adversarial” environment. practices, American labor law engenders disruption of industrial peace on a much larger scale than 36 Studies have also shown that by failing to rein in these types of adversarial occurs in other industrialized nations such as Germany and Japan. 37 Instead of promoting peaceful industrial production, the current representation process encourages wasteful legal wrangling. The contentious pre-election environment also sets a bad precedent for subsequent dealings between employers and unions, opportunity for conflict, election delays are at odds with the Act’s central purpose. 38 further impeding the attainment of industrial peace. By heightening the This structural bias against workers reinforces their perception that employers can dictate how representation and collective bargaining processes function. By granting employers the ability to draw out pre-election hearings by manufacturing disputes and delaying their resolution, current Board procedures actually magnify the disruptive effects of coercive, unfair, or illegal behavior by employers. In this context, the proposed rules are a much needed reform. They will restore control of the election process to the NLRB, rather than allowing the accident of litigation or intentional strategies of delay to unduly influence the process. Revised Statutes British Columbia 1996, Chapter 244, s. 24(2) (10 days); Alberta Labour Relations Code, R.S.A. 2000, c. L-1, s. 34(3) (“as soon as possible after application for certification”); Saskatchewan Trade Union Act, Section 6 (no time frame); Ontario Labour Relations Act, S.O. 1995, c. 1, s. 8(5) (5 days) ; Nova Scotia Trade Union Act, R.S.N.S. 1989, c.475, as amended, s. 25(3) (5 days); Newfoundland-Labrador Labor Relations Act, R.S.N.L.1990 Chapter L-1, as amended, s.47(4) (5 days). 6 Dunlop Fact-Finding Report: Commission on the Future of Worker-Management Relations 79 (1994). E.g., Kenneth G. Dau-Schmidt, Labor Law and Industrial Peace: A Comparative Analysis of the United States, the United Kingdom, Germany, and Japan under the Bargaining Model, 8 TUL. J. INT’L & COMP. L. 117, 132-37 (2000). See, e.g., John-Paul Ferguson, The Eyes of the Needles: A Sequential Model of Union Organizing Drives (March 22, 2008), at 17 (finding, inter alia, that “pre-election ULP charges... are associated with nearly 50% higher odds of new ULP charges being filed during contract negotiations”). 6
C. Long delays and ineffective remedies lead workers to give up on the NLRA representation election process altogether Some workers find themselves unable to endure the lengthy anti-union campaigns and end up withdrawing their election petitions altogether. Even though in 91% of campaigns, a majority of workers sign cards indicating their desire to form a union, in approximately one-third of cases, petitions are withdrawn before the election can be held. 39 This is explained by the fact that employer-committed ULPs are associated with an average 25 percent higher likelihood of petition withdrawal.” 4° Although the proposed rules will not eliminate all of the sources of delay and frivolous litigation, they will provide workers with more certainty regarding how long the process will take. The streamlined election timeline may encourage workers to persist, rather than withdrawing election petitions in the face of fierce employer resistance. The pattern of withdrawn petitions demonstrates the true meaning of statistics employers cite as supposed proof that the NLRB election system is working well. For example, although opponents of the proposed rules repeatedly cite that unions win 60% or more of NLRB elections that are actually held, this argument misleadingly omits from the denominator 30% to 35% of petitions where no election is ever held because workers are so thoroughly discouraged by their employers’ intimidation. This is also reflected in the fact that despite the up-to 60 million workers who say they wish they had a union, fewer than 100,000 workers were actually able to form new unions through NLRB elections in 2009 (down from 276,353 in 1970).41 Likewise, although management lawyers herald the drop in unfair labor practice complaints filed since 1980, this is not a sign of the system’s health. Rather, it is a byproduct of similar declines in the number of NLRB elections held and the fact workers “have diminished trust that the system will produce a remedy” in time to restore the integrity of an election and consequently decide not to file charges in response to many unfair labor practices that occur. 42 The successful anti-union campaign waged against registered nurses by Naples Community Healthcare System (NCH) exemplifies these statistics. In April 2007, many of the 900 nurses who worked at two acute care hospitals in Florida decided that they wanted to form a union with SEIU Logan et. al, NLRB Process Fails to Ensure a Fair Vote, supra note 12, at 6 (citing Chirag Mehta and Nik Theodor, Center for Urban Economic Development, Undermining the Right to Organize: Employer Behavior During Union Representation Campaigns, available at hehavior-during-union-rcpresentation-carnpaings.html); John-Paul Ferguson, supra note 38, at 17. 40 41 Lafer, Proposed Rule Changes, supra note 26, at 4. The percent of the non-managerial workforce who say they would vote for a union has been steadily increasing from 30% in the early 1980s, to almost 40% in the mid-1990s, reaching 53% in 2005. Richard Freeman, Do Workers Want Unions? More Than Ever, (EPI Briefing Paper No. 182, 2007). 42 Bronfenbrenner, No Holds Barred, supra note 2, at 3. 7
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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