Re: Comments on Proposed Rules Concerning Representation Case Procedures (76 Fed. Reg )

Transcription

1 Delivering Economic Opportunity National Employment Law Project Submitted to August 22, 2011 Lester A. Heltzer Executive Secretary National Labor Relations Board th Street, NW Washington, DC Re: Comments on Proposed Rules Concerning Representation Case Procedures (76 Fed. Reg ) Dear Mr. Heltzer: The National Employment Law Project (NELP) submits these comments in response to the National Labor Relations Board s (Board) Notice of Proposed Rulemaking (NPRM) concerning representation case procedures under the National Labor Relations Act, issued on June 22, Fed. Reg NELP is a non-profit organization that engages in research, education and legal advocacy on behalf of low-wage workers, the vast majority of whom are nonunionized. For more than 40 years, NELP has worked with state and local partners around the country, including legal services offices, community groups, worker centers and labor organizations, to ensure that vital workplace protections, including rights under the National Labor Relations Act (NLRA), are respected, in order to promote economic opportunity and advance economic security for all workers. As such, NELP has a direct and sustained interest in the Board s proposed rules. The NPRM proposes amendments to the Board s rules and regulations governing the filing of petitions relating to the representation of employees for the purposes of collective bargaining with their employer. Specifically, the proposed amendments would simplify election procedures and render them more transparent and uniform across regions, eliminate unnecessary litigation, consolidate requests for Board review of regional directors pre- and post-election determinations into a single post-election request, and allow the Board to more promptly determine if there is a question concerning representation. The foremost concern of the Board in crafting procedural rules governing elections, and the standard against which those rules should be judged, is whether the rules will effectuate the substantive right of employees not the interests of employers or unions to form, join, or assist labor organizations, to bargain collectively and to engage in other concerted activities or to refrain from doing so. The Board s proposed amendments meet this standard. National Office Washington, DC Office California Office Midwest Office West Coast Office 75 Maiden Lane, Suite Eye Street NW, Suite th Street, Suite South State Street, Suite S. Weller Street, Suite 205 New York, NY Washington, DC Oakland, CA Ann Arbor, MI Seattle, WA (212) tel (202) tel (510) tel (734) tel (206) tel (212) fax (202) fax (510) fax (866) fax (866) fax nelp@nelp.org

2 Employer gaming of the union election process cheats workers of their democratic right to choose union representation free of intimidation and harassment, preventing workers from achieving much-needed changes in their workplaces through unionization and negotiations with their employer. Streamlining the election process as proposed by the Board will remove some opportunities for employers to manipulate the system, and will thus better ensure that workers enjoy a more efficient, fairer, freer and more transparent process for democratically exercising their right under the NLRA to organize and bargain collectively. There is significant evidence that employers interfere with the free and fair exercise of that right by, among other things, raising needless procedural objections and imposing other obstacles that delay the certification process, hence discouraging and diluting the free exercise of the right to organize. Rules providing for the deferral of litigation if the dispute concerns workers constituting less than 20 percent of the unit, and for post-election review of Regional Director rulings, are sensible changes that will prevent unnecessary delays, ensure efficiency and eliminate wasteful litigation. The proposed changes will also ensure workers receive the information they need, promptly and in modern electronic form, to communicate with one another, prepare for hearings, and resolve issues efficiently. The changes are moderate, consistent with current Board procedures, and create a more reliable and uniform process for all stakeholders. The proposed rules are especially crucial for the low-wage workers on whose behalf NELP advocates. Because of their greater economic vulnerability and often more tenuous employment connections, low-wage workers are especially likely to be harmed and discouraged in exercising their rights by needless delays in the certification process, particularly when as is often the case delays are accompanied by aggressive union avoidance campaigns that stoke workers fears of retaliation and job loss if they persist in their efforts to form a union. The demonstrable benefits that union representation provides for low-wage workers underscores the significance of the loss to them if their rights to organize and bargain are delayed or derailed due to unnecessary pre-election litigation. We appreciate the opportunity to comment on the proposed regulations and notice. I. The proposed rules will reduce employers opportunity to manipulate the election process specifically to undermine workers right to choose union representation. The Board s proposed rules provide some necessary procedural fixes to a flawed process that has a negative effect on employees rights to form unions and bargain collectively. Contrary to the NLRA s intent, the current election rules allow parties significant opportunities to manipulate and delay elections at various points in the process: through pre-election hearings that deal with minor eligibility issues, through frivolous appeals to the Board pre- and post-election, and through scheduling requests to delay and postpone hearings. These delays create serious roadblocks to workers ability to freely choose whether or not they want representation, forestalling elections for which workers have petitioned, and buying time for the employer to escalate its anti-union campaign. In real world terms, this means workers have to face weeks if not months more of their employer s anti-union campaigning, an onslaught that in many cases has begun even before workers file a petition meaning many workers have already had to overcome employer opposition just to reach the first stage of a process that employers can 2

3 prolong to their advantage. Opponents of the proposed rules claim that no reforms are needed because, according to NLRB data, the median length of time between petition-filing and elections falls within NLRB time-line targets, and because unions win the majority of elections. 1 The figures cited, however, represent only a subset of a much fuller universe of employee organizing efforts, many of which are thwarted through aggressive anti-union activity. The data opponents cite significantly understate the striking impact of tactical delays on the election process; do not account for the cases in which workers withdraw or fail to file petitions due to delays and heavy anti-union campaigning; and do not reflect how the combined threat of delays and retaliation discourages workers from seeking to address legitimate issues through the hearing process. It is for these reasons that the proposed amendments minimizing pre-election hearings are so critical to effectuating the organizing and bargaining rights of workers. First, employers that choose to use tactical delays to frustrate workers efforts to organize can significantly extend the election process and gain valuable time to fight the organizing effort. In cases in which pre-election hearings are held, the length of time between the filing of a petition and holding an election averages 124 days. 2 These several month-long delays buy time for bad actors to campaign against the union using both legal and illegal tactics. In fact, studies show a causal relationship between the length of election delay and the number of complaints issued against employers by the NLRB. 3 The 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. 4 The union avoidance industry, estimated to be worth several hundred million dollars a year 5, coaches employers to use captive audience meetings, one-on-one meetings, as well as illegal threats and firings to improperly influence worker s free choice. 6 Some anti-union consultants specifically counsel employers to challenge the union s election petition as a key tactic of an 1 See NLRB Public Meeting on Proposed Rules (July 18-19, 2011), transcripts available at and 2 John Logan, Erin Johansson, and Ryan Lamare, New Data: NLRB Process Fails to Ensure a Fair Vote, University of California, Berkeley Center for Labor Research and Education (June 2011), 3 Id. 4 Id. at 3. 5 John Logan, Consultants, Lawyers and the Union Free Movement in the USA since the 1970s, Industrial Relations Journal, 33:3, 651 (2006), available at %20Consultants,%20Lawyers%20and%20the%20Union- Free%20Movement%20in%20the%20USA%20since%20the%201970s%20-% pdf. The International Trade Union Confederation estimates the union avoidance industry to be $4 billion per year. International Trade Union Confederation, Annual Survey Violations of Trade Union Rights (2011), available at 6 Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing Economic Policy Institute, Economic Policy Institute Briefing Paper #235 (May 20, 2009), available at 3

4 anti-union campaign. 7 unit. 8 As one firm boasts, We do not simply accept the union s petitioned The combination of pre-election delays and aggressive anti-union campaign tactics can be powerful tools with which to battle organizing efforts by low-wage workers, as the following examples demonstrate: In 2000, the Union of Needletrades Industrial and Textile Employees (UNITE) filed an election petition for a Dillard s distribution center in Little Rock, Arkansas with the support of around 65 to 70 percent of the center s workforce. 9 UNITE lost the election by a margin of two to one after months of intense anti-union campaigning, which began even before workers filed an election petition. The employer forced a pre-election hearing by arguing that several departments of professional workers employed at a separate location should be included in the unit of pickers, packers, forklift drivers, loaders and other warehouse workers, many of whom earned just over minimum wage. The hearing bought Dillard s extra time to hold repeated captive audience and one-onone meetings, at which it warned that unionization could lead to the center s closing; to identify and isolate union supporters by changing their shifts and job locations and excluding them from meetings; and even to target local clergy who had pledged their support for the workers. These tactics were so effective that workers reportedly became too scared to discuss the union with co-workers, to be seen at union meetings, or even to accept union leaflets distributed by the worker organizing committee at the plant s gates. Assi Market in Los Angeles Koreatown deployed many of these same tactics during an organizing campaign by its workers in 2001and Although it had no prior experience with NLRB elections, the brand new, independent Immigrant Workers Union chose to file an election petition because it hoped Assi would respect the governmentsupervised process and would refrain from illegally firing workers. But, with the help of counsel, Assi was able to delay the election hearing for over a month-and-a-half, resulting in an almost four-month period between the petition filing and the election. The company hired a full-time, onsite consultant and a translator to help it run an aggressive campaign. It held daily captive audience and one-on-one meetings; threatened and bribed 7 Gordon Lafer, Neither Free nor Fair: The Subversion of Democracy under NLRB Elections, American Rights at Work (2007), available at 8 See Baker Daniels Union Avoidance website, at 9 Phone interview with Liz Gres, former UNITE organizer (July 28, 2011); phone interview with Brent Garren, formerly General Counsel to Workers United Union, successor to UNITE (July 20, 2011). Campaign dates confirmed by National Labor Relations Board Region 26 Little Rock, AR office. For more information on this campaign, see Appendix A. 10 Janice Fine, Worker Centers: Organizing Communities at the Edge of the Dream, Cornell University Press (2006) ; unpublished transcripts of interviews with Assi Market workers, and KIWA and IWU staff, conducted by Janice Fine; Yungsuhn Park, The Immigrant Workers Union: Challenges Facing Low-Wage Immigrant Workers in Los Angeles, 12 Asian L.J. 67 (2005). 4

5 workers; interrogated workers about their views on the union; targeted union supporters through suspensions, firings, and changes to work schedules; fueled tensions between Korean and Latino workers; and even attempted to block entrances to the voting area on the election day. The election resulted in a tie vote. Even after the election campaign ended and the union withdrew the ULP charges, management persisted in retaliation, culminating in the suspension to 56 workers nearly all of the Latino employees and a small number of Korean workers in August The message of these ongoing hostilities was not lost on the employees. Although they continued to press for changes for years after the election, they did not attempt an NLRB election again. Reflecting on the election campaign and its aftermath, one worker remarked, Nothing s changed. From the time I first went in to work and when I left there s really no improvements or changes. 11 Workers at both Dillard s and Assi Market wanted to try organizing again after the failed elections, but the unions declined to re-attempt NLRB elections at these sites, believing the process was too open to manipulation by employers determined to defeat the workers organizing effort. Second, the data cited by opponents does not account for the significant number of petitions that are withdrawn before an election is held--often because the employer s anti-union campaign has had the desired effect of derailing the workers organizing--or for the many instances in which workers initiate an organizing drive but become so frightened or discouraged by employer retaliation that they never file an election petition. NLRB data shows that 30 percent of petitions filed in 2010 were withdrawn before an election. 12 While the NLRB did not report on the cause of these withdrawals, pre-election delays and anti-union campaigning operate as significant organizing deterrents to low-wage workers, as reflected in the following examples: In 2004, baristas and other frontline workers at a Starbucks store in midtown Manhattan withdrew their election petition after they learned, just days before the scheduled vote, that the election would be delayed while the NLRB considered an appeal by their employer. 13 Starbucks challenged the Industrial Workers of the World s (IWW) petition on two grounds: (1) the exclusion of shift supervisors from the unit; and (2) that a single store was not an appropriate unit; and then appealed NLRB Region 29 s decision in favor of the union on the second issue. The corporation simultaneously launched a full-fledged anti-union campaign, assigning additional managers to the store to help conduct repeated 11 Interview with former Assi Market worker, conducted by Janice Fine, unpublished transcripts provided by Janice Fine. 12 NLRB Representation Election Chart, , available at 13 Interview with Daniel Gross, former Starbucks employee and IWW organizer, August 4, 2011; Steven Greenhouse, Starbucks Loses Round in Battle Over Union, New York Times (December 23, 2008); Daniel Gross, Latte Laborers Take on a Latte-Liberal Business, New York Times (April 8, 2007); Anya Kamenentz, Baristas of the World Unite!, New York Magazine (May 21, 2005). For more background on this campaign, see Appendix C. 5

6 rounds of one-on-one meetings, interrogate workers about their views on the union, and make bribes and issue threats. The corporation directed its efforts beyond the one store, sending letters to all frontline workers and posting notices in stores around the nation disparaging the union. Fearing the appeal would take years to resolve, workers withdrew the petition and focused on organizing outside the election process. Starbucks, in turn, continued its attack, which has resulted in significant litigation, a settlement requiring the corporation to reinstate and grant backpay to fired union supporters, and an NLRB ruling against the company for illegal firings and other discriminatory action. Daniel Gross, the worker who initiated the campaign, remarked that his co-workers learned through this experience that Starbucks will use its power to its way. The company didn t want the election and with lawyers help, they made it so. That the election got jammed up confirmed people s suspicion that the company was too powerful to let it happen. Workers at Tuv Taam, a kosher food production plant in Brooklyn, NY never had the opportunity to file an election petition. 14 Cooks, production and maintenance workers began holding organizing meetings, signing union authorization cards and intended to seek union recognition, but their employer succeeded in stalling the campaign by illegally firing 32 supporters. The firings intimidated the remaining workforce, many of whom had initially shown interest in the organizing, but who refused to sign cards after their coworkers lost their jobs. The employer was required to reinstate and give backpay to workers pursuant to a settlement years later, but the campaign never fully regained momentum. The fired workers and their families suffered without income while awaiting the implementation of the settlement agreement. Finally, even when employers do not specifically use these union avoidance tactics, the mere threat of delays can cow workers into agreeing to employer demands about the appropriate voting unit in ways that disadvantage workers efforts to gain representation. 15 With fewer legal resources, low wage workers and their representatives often opt to drop challenges to avoid the risk of a lengthy, expensive and, frequently, frivolous hearing process. Workers and their advocates may also accept employer s pre-election challenges to avoid a protracted period of retaliatory activity. This less obvious effect of delay opportunities skews the election process in favor of employers and denies workers full exercise of their organizing rights. As the preceding examples demonstrate, and contrary to contentions by the rules opponents, employers of all sizes begin campaigning against the union early, before an election petition is filed in many cases, and campaign aggressively throughout the election period. Reducing the opportunity for pre-election delays is therefore a crucial step towards mitigating the risks of employer retaliation and safeguarding workers rights under the NLRA. 14 Interview with Mayra Peters-Quintero, attorney for the Tuv Taam workers, formerly at the Puerto Rican Legal Defense and Education Fund (now called Latino Justice PRLDEF), August 9, 2011; Tuv Taam Corp., 340 N.L.R.B. 756 (2003); Carolina Gonzalez, Strike Fury as Workers Fired, New York Daily News (July 6, 2001); Fiona McDonough, Latino Workers Win 860g W burg Firm Agrees to Settle Wages, OT, New York Daily News (June 13, 2003). 15 See John Logan et al supra note 2. 6

7 II. Reforms to the timing and contents of the election list are necessary to ensure free flow of communication between workers and reflect the reality of modern workplaces and workers. Rules requiring the prompt delivery of the election list and the inclusion of more complete worker contact information further the NLRA s objectives of ensuring the fair and free choice of bargaining representatives by allowing workers and the union the ability to reach and communicate with each other a completely unfettered right management already enjoys, and that is in no way diminished by this proposal. Contrary to the significant restrictions imposed on workers involved in an organizing drive, employers have the ability to use work time to communicate their message around the clock. They have near-unrestricted access to workers and resources to communicate with their employees through meetings, materials, videos, and increasingly through websites and As demonstrated by research and by the examples provided above, employers take full advantage of their rights, and often violate the NLRA s prohibitions on making threats or bribes in their communication with workers. The most recent comprehensive empirical analysis of employer interference with worker organizing found that in two-thirds of elections, workers were forced to attend anti-union one-on-one sessions with a supervisor in the workplace; in 63 percent of elections, employers used supervisor one-on-one meetings to interrogate workers about who they or other workers supported; and in 54 percent of election campaigns, employers used these sessions to threaten workers. Employers threatened to close the plant in 57 percent of elections, fired workers in 34 percent, and threatened to cut wages and benefits in 47 percent of elections. 17 Given the massive imbalance between employers and workers ability to communicate about the union, the election list reforms are an important step towards enabling worker speech. The reforms will give workers greater ability to share ideas and opinions with each other in the manner they choose and away from the worksite, where concerns that the employer may be monitoring their communications will have a chilling effect. The election list reforms are especially critical for low-wage workers, whose ability to share information with each another is severely limited because their work and worksites are marked by high turnover; they often have erratic schedules; and even their ability to engage in conversation may be restricted by the nature of their job. Nearly 60 percent of low-wage workers are employed in companies with annual turnover of 50 percent or more each year, meaning that the voting unit may change significantly over the course of an organizing 16 See, for example, Target anti-union website, at 17 See Bronfenbrenner (2009) supra note 5. Because remedies under the NLRB are so weak and its procedures so slow, some employers also chose to utilize illegal anti-union tactics that speak a very loud message to their workers, making threats of closure, firing worker leaders, and creating aggressive vote-no committees. See Logan (2006) supra note 4, at 207. Further, in workplaces with immigrant workers, employers have threatened to turn workers into immigration authorities, in attempts to undermine worker organizing efforts. See Bronfenbrenner (2009) supra note 5, at 10. See also Precision Concrete, 337 NLRB 211 (2001), enf d in relevant part, 334 F.3d 88 (2003) and Westchester Iron Works Corp., 333 NLRB 859 (2002). 7

8 campaign, especially if the election is delayed. 18 The growth of just-in-time scheduling practices in the service sector means that many low-wage workers receive their schedules at the last minute, often are sent home after they arrive for work or asked to stay beyond the end of their shift, and wind up working very different schedules form week to week. 19 They may not always know their co-workers, impeding communication, and may have difficulty attending offsite union meetings. Finally, workers employed on line-jobs and working with noisy machinery may simply not be able to talk to co-workers at work, as workers in other sectors take for granted. The addition of phone numbers and addresses, a common-sense adjustment reflecting modern, and increasingly dominant modes of communication is also especially crucial to lowwage workers, who may not remain at one address for long or may not even have a fixed home. Similarly, disclosure of workers job classifications and location is an important update reflecting the variety of work arrangements that predominate in modern workplaces. More and more workers are employed at nontraditional hours or on part-time schedules and several may be away from the worksite, for job-related or personal reasons (such as medical or parental leave) at any given time. The sensible reforms proposed to facilitate workers communication with one another are in keeping with the NLRA s goal of furthering workers right to organize and to promptly resolve questions of representation. III. The proposed reforms are crucial for low-wage workers, who are especially vulnerable to employer retaliation, face high barriers to unionization, and benefit disproportionately from the buffer that unionization provides against the worst workplace abuses. Unionization provides a crucial means for workers to raise the substandard wages and address the workplace abuses that are common in low-wage occupations. But with lower job tenure rates and job security, 20 a high fear of retaliation, 21 and fewer resources, low-wage workers face especially high barriers to union recognition. The need to address abusive employer tactics and process flaws is thus of extreme importance to low-wage and immigrant workers, who make up approximately one in four workers in the United States Fredrik Andersson, Harry J. Holzer, and Julia I. Lane, Moving Up or Moving On: Who Advances in the Low- Wage Labor Market, Russell Sage Foundation (2005), Nancy K. Cauthen, Scheduling Hourly Workers: How Last Minute, Just-In-Time Scheduling Practices are Bad for Workers, Families and Business, Demos (2011). 20 Frederick Andersson, supra note 19, at Annette Bernhardt, et al. Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America s Cities, Center for Urban Economic Development at University of Illinois-Chicago, National Employment Law Project & UCLA Institute for Research on Labor and Employment (September 2009). 22 Heather Boushey, Shaw Fremstad, Rachel Gragg, and Mary Waller, Understanding Low-Wage Work in the United States, Center for Economic Policy and Research (March 2007), available at 8

9 Low-wage workers are extremely economically tenuous. Roughly half of low-wage workers live in low-income households. 23 One-quarter are the sole source of work-based earnings for their households, and another third provide more than half of their household s income. 24 Low-wage workers experience high rates of workplace violations, and conditions have worsened since the onset of the recession. Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America s Cities, a 2008 survey of low-wage workers in three major U.S. cities, found systematic violations of basic workplace protections. Of surveyed workers, 26 percent were paid less than the legally required minimum wage in the previous work week and over 76 percent were not paid the legally required overtime rate. 25 The survey also found high rates of off-the-clock violations, meal break violations, pay stub violations, illegal deductions, and tipped job violations. 26 The same survey found that among workers who complain about workplace violations or attempt to form unions, a high rate of retaliation prevails. Forty-three percent of surveyed workers experienced one or more forms of illegal retaliation, including firings or suspensions, threats to call immigration authorities or to cut workers hours or pay. 27 Significantly, a large share of surveyed workers 20 percent who experienced a serious problem such as dangerous working conditions or payment of sub-minimum wages did not pursue complaints or attempt to form a union out of fear of retaliation, or because they viewed those processes as futile. 28 Low-wage workers who overcome employer retaliation and threats and win a union at their jobs stand to make significant improvements. Unionized workers in the bottom ten percent of the earnings distribution earn 21 percent more than their nonunion counterparts. 29 Among the discrete demographic groups that disproportionately comprise the low-wage labor market women, African Americans, Latinos and immigrants the union premium in the form of higher earnings and greater access to employer-provided health insurance and retirement coverage is significant as well, particularly for workers in the 15 lowest paid occupations. 30 Specifically, 23 Urban Institute and Workplace Flexibility 2010: Georgetown Law, Lower-Wage Workers and Flexible Work Arrangements, (2010), Congressional Budget Office, Changes in Low Wage Labor Markets Between 1979 and 2005, (December 2006), 20, available at 25 Annette Bernhardt, et al. supra note 21, 2. See also, North Hills Office Services, 346 NLRB 1099, 1102 (2006) (Board finding that that threats involving immigration or deportation can be particularly coercive. Such threats place in jeopardy not only the employees' jobs and working conditions, but also their ability to remain in their homes in the United States. ) (citing Smithfield Packing Co., 344 NLRB 1, 9 (2004)). 26 Id. at Id. 28 Id. 29 John Schmitt, The Union Advantage for Low-Wage Workers, Center for Economic Policy & Research (May 2008), available at: 30 John Schmitt, Unions and Upward Mobility for Women Workers, Center for Policy & Economic Research (December 2008); Unions and Upward Mobility for African American Workers (March 2008); Unions and Upward Mobility for Latino Workers September 2008); Unions and Upward Mobility for Immigrant Workers 9

10 within these groups, unionized workers earn as much as 19.5 percent more than their union counterparts, are up to 41 percentage points more likely to have employer-provided health coverage, and up to 29.2 percentage points more likely to have employer-provided retirement savings accounts than their non-union peers. 31 The representation gap, the difference between workers represented and those who wish to be, is significant 32 and surveys of low-wage immigrant workers have shown an even larger gap. 33 Yet, studies have shown that unions are crucial to workers asserting their own workplace rights as well as improving workplace standards and compensation. A large number of empirical studies demonstrate that workers are more likely to exercise rights where they have an agent, often a union, to assist them in use of those rights. 34 Low-paid workers who collectively bargain with their employers are also more likely to have access to a host of additional employee benefits, such as paid leave of reasonable duration, along with the basic due process rights conferred by a collective bargaining agreement, and greater job security. The proposed amendments are an important step towards ensuring the NLRB remains responsive to workers, and towards restoring low-wage workers faith in this vital federal body. These changes are even more pressing today because of the continued growth of low-wage jobs in our economy. A more responsive NLRB election system can play a role in preventing the disturbing trends we see in these industries from becoming the norm for all American workers. 35 Improving the responsiveness of the NLRB election process to the special circumstances of lowwage worker organizing will help mitigate hardships these workers currently face in asserting their rights under the NLRA and other statutes. Empirical analyses of the interplay between current enforcement schemes and workers exercise of rights find that the combined effect of exclusions, slow processes and weakened enforcement undermines workers faith in the very systems that were designed to protect them and discourages them from being active participants in enforcing workplace standards. 36 As Professor Jennifer Gordon has detailed, slow processing, limited enforcement powers, and complex bureaucracies discourage low wage (March 2010), available at Ibid. 32 Richard B. Freeman, Do workers still want Unions? More than Ever, Economic Policy Institute (2007), available at 33 See Ruth Milkman, Immigrant Workers and the Future of American Labor, 26 ABA Journal of Labor & Employment Law 295, 305 (2011). 34 For a summary of these studies, see David Weil, Individual Rights and Collective Agents: The Role of Old and New Workplace Institutions in the Regulation of Labor Markets, in Emerging Labor Market Institutions for the Twenty-First Century 13 (Richard Freeman et al. eds., 2005). 35 NELP s analysis of recent employment data shows that three-quarters of net job growth during the first year of the jobs recovery has been in low wage occupations. National Employment Law Project Research Brief, The Good Jobs Deficit: A Closer Look at Recent Job Loss and Job Growth Trends Using Occupational Data (July 2011) available at 36 David Weil and Amanda Pyles, Why Complain? Complaints, Compliance and the Problem of Enforcement in the U.S. Workplace, 27 Comp. Lab. L. & Pol y J. 59. (2005). 10

11 immigrant workers from asserting workplace rights. 37 Indeed, many low-wage workers and union have sought alternative routes to union recognition outside of the NLRB process out of fear of delays and retribution. 38 IV. The proposed changes are modest and sensible reforms that are in keeping with current practices at many regional offices, consistent with Board decisions, and parallel rules of civil procedure. The NLRB s proposals incorporate basic rules from the Board s own best practices and rules of civil procedure designed to avoid unnecessary litigation, conserve parties time and resources, and limit waste of taxpayer dollars. The reforms are also in keeping with current practices at many regional offices, and are consistent with Board decisions. With regard to position statements, the Board s current policy is to send initial letters to employers asking the employer to state its position on the appropriateness of the unit. The Board s Casehandling Manual also states that parties should succinctly state on the record their positions. In Bennett Industries, Inc. 313 NLRB 1363, 1363 (1994), the Board sustained a hearing officer s ruling preventing an employer from introducing irrelevant evidence, stating that in order to provide for an expeditious representation election, it should seek to narrow issues and limit areas of dispute. The proposed revisions make this practice mandatory and uniform, modeling mandatory disclosures rules used in civil litigation. 39 The Board s proposed rules also incorporate a fundamental tenet of federal civil procedure holding hearings only when there is a genuine dispute as to a material fact. This concept is based in practices of efficiency that were adopted by civil courts centuries ago. The Board s current regulations already incorporate this concept within the post-election procedures. 40 The Board has consistently sustained regional directors decisions to defer resolving questions of individual workers eligibility until after an election. 41 The proposed changes are consistent with the statutory language of the NLRA, with due process procedures in the federal courts, and with Board precedent. In addition, by minimizing the potential for using hearings as a tactic for delaying elections, they further the goal of advancing the right of workers to make their own decisions related to union representation. The Board s proposals to update voter lists to include more information is a needed reform to conform with the purposes articulated by the Board in Excelsior Underwear, Inc., 156 NLRB 1236 (1966), and upheld by the Supreme Court in NLRB v. Wyman-Gordon Co., 294 U.S Jennifer Gordon, We Make the Road By Walking: Immigrant Workers, the Workplace Project, and the Struggle for Social Change, 30 Harv. C.R.-C.L. L. Rev. 407 (1995). 38 See Benjamin I. Sachs, Labor Law Renewal, 1 Harv. L. & Pol y Rev. 375 (2007). 39 See FRCP 26(a) 40 NLRB Casehandling Manual section See also NLRB v. Bata Shoe Co., 377 F.2d 821, 826 (4 th Cir. 1967). 41 See Northeast Iowa Telephone Co., 341 NLRB 670, 671 (2004); HeartShare Human Services of New York, Inc., 320 NLRB 1 (1995); Bituma Corp v. NLRB, 23 F.3d 1432, 1436 (8 th Cir. 1994). 11

12 (1969). Privacy concerns regarding voter information are misplaced. The Board s current rules already mandate disclosure of workers contact information. In Excelsior, the Board stated two reasons for providing petitioning unions with voter contact information: (1) access to the workforce, and (2) the prompt resolution of questions of representation. Providing petitioners with this added information will ensure that workers have the ability to communicate among themselves and have the information necessary to make informed decisions about individual workers inclusion in the unit. The Board s proposals allowing for more direct communication between the petitioner and employer, the Board and workers, and for electronic filing are necessary changes reflecting the predominance of newer technologies. The Board has already started to incorporate electronic filing of documents through various pilot projects. In the 21 st century, with the use of , texting, cell phones, and websites as significant means of communication, it is important that the Board incorporate these new technologies to maintain efficiency and stay relevant. The Board recently recognized in J. Picini Flooring, 356 NLRB No. 9 (2010), that electronic communications are now the norm in many workplaces. Many employers already communicate their views during union campaigns using electronic means. Importantly, the proposed amendments also impose a restriction on use of the voter list, barring parties from using it for purposes other than relevant proceedings. Finally, the proposed rules are modest changes that do not in any manner reduce or restrict rights employers enjoy under the NLRA, including their freedom to relay their anti-union message. Contrary to opponents contentions, the reforms would not restrict free speech because employers can and do freely and frequently communicate their anti-union message with workers, often from the first day of hire. Nor do the proposed rules change what employers can say to workers or the ability of employers to hold mandatory captive audience meetings during work time. Studies show that employers campaign against worker organizing early and continuously. Many employers incorporate views on unions into a worker s first day of hire, through orientations, videos, or employee handbooks. 42 A recent analysis of unfair labor practice data by Professors Kate Bronfenbrenner and Dorian Warren shows that employer opposition to organizing begins before the petition is filed and continues steadily throughout the campaign. 43 For example, in a survey of ULP data from 2003, the study found 47 percent of serious ULPs were filed before the certification petition was even filed. 44 This is borne out by the campaign examples provided above, showing that a mix of employers, local and national, large and small, all started aggressively communicating an antiunion message soon after workers began organizing, and before workers had filed election petitions. 42 See, for example, Discounting Rights: Walmart s Violation of US Workers Right to Freedom of Association, Human Rights Watch (2007). 43 Kate Bronfenbrenner, Dorian Warren, The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence, Working Paper Series , Institute for Social and Economic Research and Policy (2011). 44 Id. at 8. 12

13 Employers, especially large companies, disseminate anti-union messages company-wide even when there are organizing efforts underway at only a few locations. 45 This was certainly the case at Starbucks, which started a company-wide campaign after learning that a handful of workers at one store were attempting to unionize. The NLRB s proposed rule changes are limited to creating procedural efficiencies that will enhance employees exercise of their substantive organizing and bargaining rights. The proposals impact on employers is largely limited to affecting those employers who choose to use these tactical delays to manipulate the process. The changes are modest in scope and leave unchanged rules on the content of employer and union speech, the nature and frequency of employer communications with employees, union access to the workplace, employees organizing communications with each other on the worksite and during work hours, coverage under the Act, and remedies for unfair labor practices. The proposed rules preserve due process, freedom of speech, and freedom of association, and they further the purpose of the Act. These changes proposed by the Board would overall create more uniformity and certainty for all parties in the election process and create a more efficient and fair process. Conclusion For the reasons stated above, we urge the Board to adopt its proposed rules issued for comments on June 22, Very truly yours, Christine Owens, Executive Director Sarah Leberstein, Staff Attorney 45 John Logan, Erin Johansson, and Ryan Lamare, New Data: NLRB Process Fails to Ensure a Fair Vote, University of California, Berkeley Center for Labor Research and Education (June 2011). 13

14 APPENDIX A: Campaign Profile Dillard s Distribution Center, Little Rock, AR 46 In 2000, workers at a Dillard s distribution center in Little Rock, Arkansas, began an effort to organize a union with the Union of Needletrades Industrial and Textile Employees (UNITE). The campaign involved a unit of between 500 and 600 workers employed as pickers, packers, forklift drivers, loaders and other warehouse workers, many making just over minimum wage, mainly White and African-American, and some Latino. The workers wanted to improve their wages and benefits, and gain the ability to bargain over production quotas and other working conditions. Many knew that the staff at a unionized Levi s plant in Little Rock had higher wages and better conditions than their own and hoped they could make similar improvements. Many workers were scared even before they went public about the union campaign, and before the employer began campaigning against the union. Living paycheck to paycheck, they feared that they would be fired for supporting the union and would not be able to find other employment, a particular concern because of the faltering economy in Little Rock at the time. In addition, workers feared that Dillard s could close down and move somewhere else. Dillard s management began talking with workers about the union almost immediately after workers began signing cards, before the representation petition was filed. Aware that the company was likely to quickly escalate its campaign, UNITE filed an election petition in the spring of 2000, a couple of weeks after it began meeting with workers. At the time it filed for the election, UNITE had signed union authorization cards from 65 to 70 percent of the workforce. Soon after the union filed the election petition, the company began holding mandatory captive audience meetings and one-on-one meetings with all workers. The company told workers that it could make no guarantees that the distribution center wouldn t lose its competitiveness and be forced to shut down. Despite the fact that the city gave Dillard s financial support, and Dillard s had contractual obligations to remain in Little Rock, the workers took the company s threats seriously. The employer also launched legal challenges to the workers representation petition. Claiming that all professional and white collar workers should be in the election unit even those at the corporate headquarters, in a separate building adjacent to the distribution center, the company forced a dispute that took months to resolve. The resulting unit excluded almost all of the workers that the company tried to include. Yet for over a week, the employer s attorney put on witness after witness. Workers who attended the hearing were discouraged and frustrated. They believed the company was stalling. 46 This account of the Dillard s campaign is based largely on a phone interview with Liz Gres, former UNITE organizer, conducted on July 28, Additional information was provided by Brent Garren, formerly General Counsel to Workers United Union, successor to UNITE, during a phone interview on July 20, The National Labor Relations Board Region 26 Little Rock, AR office confirmed the petition and election dates. 14

15 The company took advantage of the delay to continue its anti-union campaigning. It isolated union supporters by excluding them from captive audience meetings and changing their shifts or job locations. It distributed and posted anti-union literature, and continued one-on-one meetings. The employer s onslaught was not limited to workers at its distribution center. Dillard s management also reportedly targeted clergy who publically pledged to support the workers, approaching the clergy at their churches, warning that there would be consequences to their actions in support of the workers. Support for the union began to wane as workers fears grew. Workers felt they were being surveilled at work and could not discuss the union at the worksite or even outside the distribution center before or after their shifts. Workers grew too scared even to accept union materials their fellow workers handed out outside the plant s gates. Attendance at general meetings and organizing committee meetings fell sharply over the months leading up to the election. After facing two-and-a-half months of intense anti-union campaigning, workers voted against union representation by a margin of two to one. Despite the election results, workers approached the union again the year following the election and said they were interested in attempting to organize again. They reported that many of their co-workers felt they had been tricked by the company. UNITE never again attempted an NLRB election campaign at the site, however. 15

16 APPENDIX B: Campaign Profile Assi Market, Los Angeles, CA 47 In June of 2001, workers at the Assi market in Los Angeles Koreatown began an organizing campaign aimed at increasing their low wages and addressing pervasive wage and hour law violations, discrimination, and verbal and physical abuse of workers by store managers. Workers were also concerned about health and safety issues. Several workers had sustained serious injuries on the job, but the company prevented workers from filing workers compensation claims and sent them back to work. One worker complained that he once saw a manager of the kitchen hit a worker, but we couldn t do anything Then one time we decided enough was enough, we began to organize for the union. The Latino and Korean immigrant workforce sought the help of a local community-based organization, Korean Immigrant Workers Advocates (KIWA), which helped the workers form an independent community-based union, the Immigrant Workers Union (IWU). KIWA and the IWU chose to seek recognition of their union through an NLRB election rather than attempt a card check-neutrality campaign because, as Paul Lee, KIWA s former organizing director explained, [T]he NLRB provided a way of utilizing this reverence toward the American legal system to win a union or bring legitimacy to the fact that there is a process and right for workers to organize. Workers filed an election petition on November 15, Workers and KIWA had hoped that Assi would be less likely to react harshly to the campaign and would refrain from immediately firing workers if the workers organized through the NLRB process. Instead, the employer hired a consultant and translator to work full-time at the worksite to help it conduct an intense anti-union campaign. With the help of an anti-union law firm, the employer was able to delay the election hearing for over a month-and-a-half. This delay bought Assi time to hold daily captive audience speeches and one-on-one meetings with each worker. One of the workers who voted against the union but who later came to support the union effort described how managers warned of the consequences of unionization while bribing workers to vote no: I had been thinking about supporting the union, but Assi brought in people who told us that if the union comes in we ll have to pay high dues, but if they don t come in then the employer is going to treat us better and give us better benefits. About a month or two months prior to the election date the owner would take us all out to these fancy restaurant and he would say that if we vote no on the union, then we would be helping him and in return [he] will help [us] by raising [our] wages and giving [us] benefits. The employer s tactics also included offering better schedules to workers in exchange for ceasing to wear union shirts; terminating, suspending and changing the work schedules of union 47 This account of the campaign at Assi Market is based largely on Janice Fine s account in Worker Centers: Organizing Communities at the Edge of the Dream, Cornell University Press (2006) , as well as transcripts of interviews she conducted with Assi Market workers, KIWA and IWU staff. See also, Yungsuhn Park, The Immigrant Workers Union: Challenges Facing Low-Wage Immigrant Workers in Los Angeles, 12 Asian L.J. 67 (2005). 16