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Statement by UFCW Executive Vice President Pat O’Neill on Proposed NLRB Rule to Modernize Union Election Process

July 19, 2011 Updated: August 24, 2020

Washington, D.C. –  The following remarks were delivered by UFCW Executive Vice President and Organizing Director Pat O’Neill, who testified at the National Labor Relations Board’s (NLRB) public meeting on July 19, 2011 regarding the NLRB’s proposed rule changes to the union election process:

“American workers are struggling to make ends meet during the worst economic downturn since the Great Depression.  Workers in the grocery, retail, meatpacking and food processing industries are no exception.  Union contracts offer the best opportunity for stable, middle class jobs. While the National Labor Relations Act gives workers the fundamental right to join a union and achieve the benefits of collective bargaining, the NLRB’s current rules are seriously outdated, needlessly complex, and foster frivolous litigation.  The current process creates barriers to workers exercising their fundamental right to form a union. It’s time to return the process to its original intent – which is to give workers a clear path to making the choice when they want collective bargaining.

“We view the proposed election rule changes as a modest but important first step toward modernizing and streamlining an outmoded process that encourages unnecessary, time-consuming and wasteful litigation.

“The proposal to defer resolution of most voter eligibility issues until after the election, including all bargaining unit disputes affecting less than 20 percent of the unit, would make the current process more efficient and worker-friendly. Just ask the employees of Home Market Foods in Norwood, Mass., who sought representation by UFCW Local 1445. Workers petitioned for an election in a unit of all production, maintenance, shipping, receiving and housekeeping employees, including 11 quality assurance (Q.A.) technicians but excluding nine Q.A. technologists, who the technicians consider to be their supervisors. However, the company argued that none of the Q.A. workers should be in the unit – or if they were included, that the technologists were not supervisors and should vote in the election.  By disputing the Q.A. workers’ status, the company delayed the election until 79 days after the petition was filed.  And during this delay, management used the time to further threaten workers with job loss and plant closure if they won in the election. The workers lost the election 104-114. If the Q.A. employees’ eligibility to vote had been deferred until after the election, the election would have taken place before the employer’s scare tactics had their intended effect. In that case, the workers would have won the election by a big enough margin that their votes would not have affected the outcome.

“This is exactly why the proposed changes are needed.  Workers go to work to earn a living, not to get engaged in a protracted lawyer-driven tug of war with their employer. When workers want to organize a union, they want to do it immediately.

“The proposed rule changes will not interfere with employers’ free speech rights. Workers know their employers’ views on unionization.  And if workers are unclear about their employers’ position, it doesn’t take long for them to find out.  Nor will this rule change lead to “ambush” elections, as claimed by employer-funded lawyers.  Almost all union election campaigns are well underway and well known to employers long before an election petition is filed. In virtually all instances, employers have ample time to communicate with their workers.

“This fact is supported by a recent study by Professors Kate Bronfenbrenner of Cornell and Dorian Warren of Columbia, both of whom will address this panel later today.  Their research shows that “Thirty-one percent of serious [unfair labor practice] violations occurred 30 days before the petition was filed and 47 percent of all serious allegations occurred before the petition was filed.” The data support their conclusion that employer “opposition starts long before the filing of the petition.”  UFCW organizers have long known and experienced this first-hand many times.

“The UFCW is optimistic that the proposed rule changes will begin to restore the NLRB election process back to what it was intended to do – give workers a clear process to organizing a union.  We are, however, concerned about the possible elimination of the blocking charge policy.  Strong employer opposition to union organizing campaigns is the rule rather than the exception. Workers and their unions, when faced with serious employer unfair labor practices during the critical period, may need temporary postponement of the election to try to counter the employer’s illegal conduct. The blocking charge policy is needed to help attempt to prevent that from happening.

“The UFCW will make a more detailed response to the Board’s Notice of Proposed Rule Making in the written comments it plans to file. Again, thank you for this opportunity to speak in support of the proposed rule.”

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