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

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are withdrawn before the election can be held.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The pattern of withdrawn petitions demonstrates the true meaning of statistics employers cite as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.
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