Board elections are conducted on a basis of high standards designed to make certain that the employees in the voting unit or voting group enjoy the opportunity to exercise their franchise in a free and untrammeled manner in the choice of a bargaining representative.
We have already described the procedure (ch. 22) in the handling of objections to elections. We now turn to the substantive case law which deals with preelection campaign interference. This is discussed prior to our treatment of matters that affect the actual conduct of the election because it concerns the campaign which, of course, occurs in the period preceding the election, and is therefore a type of conduct quite different from that which occurs at or near the polling place on the day of the election. There is considerable overlap between 8(a)(1) conduct and preelection campaign interference. Because this is a text on representation case law, there will be only limited discussion of unfair labor practice case law.
Before discussing the law on what is and is not objectionable conduct, it is important that we summarize the procedural rules with respect to objections. See also CHM sections 11390–11406.
As a general rule, the period during which the Board will consider conduct as objectionable—often called the “critical period”—is the period between the filing of the petition and the date of the election. Ideal Electric Mfg. Co., 134 NLRB 1275 (1961). It is the objecting parties burden to show that the conduct occurred during the critical period. Accubuilt, Inc., 340 NLRB No. 161 (2003); Gibraltar Steel Corp., 323 NLRB 601 (1997); and Dollar Rent-A-Car, 314 NLRB 1089 fn. 4 (1994). The critical period begins on the date of the petition filing and covers all conduct occurring on that date even if it occurs before the time of the day when the petition was filed. West Texas Equipment Co., 142 NLRB 1358, 1360 (1963). The critical period for a second election commences as of the date of the first election. Star Kist Caribe, Inc., 325 NLRB 304 (1998).
Prepetition conduct may be considered where it “adds
meaning and dimension to related postpetition conduct.” Dresser Industries, 242 NLRB 74 (1979), and
In Harborside Healthcare, Inc., 343 NLRB No. 100 (2004), the Board affirmed the Gibson Discount exception to the Ideal Electric Mfg. Co. rule (134 NLRB 1275 (1961)) in the context of supervisor coercion to employees to sign union cards. The Board also commented in Harborside, supra at fn. 21.
Ideal Electric notwithstanding, the Board will consider prepetition conduct that is sufficiently serious to have affected the results of the election.
In two cases the Board dealt with the appropriate
objections period in cases where there are two petitions. In R. Dakin & Co., 191 NLRB 343 (1971), and 207 NLRB 521 (1973), the Board
held that conduct occurring prior to the operative petition was not to be
considered even though it occurred after the filing of an earlier petition for
the same unit, and the later withdrawal of that petition. A different result
obtained, however, when the first and second petition were on file at the same
time and the conduct occurred before the second petition. There the conduct was
considered as objectionable even though the first petition was withdrawn.
Postelection conduct by parties will not ordinarily be grounds for valid objections. Mountaineer Bolt, 300 NLRB 667 (1990).
Objections to the election must be filed with the Regional
Director within 7 days after the tally of ballots has been prepared. See Rule
102.69(a). Filing of objections is achieved by personal service in the Regional
Office by close of business on the due date or by deposit of the objections in
the mail prior to the due date. John
The Regional Director is responsible for service of the objections on the other parties to the case. The objecting party is, however, required to provide the Regional Director with an original and five copies of the objections. Rule 102.69(a).
The burden is on the objecting party to provide evidence that the election should be set aside. Daylight Grocery Co. v. NLRB, 678 F.2d 905, 909 (11th Cir. 1982); Lamar Advertising of Janesville, 340 NLRB No. 114 (2003); and Consumers Energy Co., 337 NLRB 752 (2002),
Within 7 days of the filing of objections, the objecting
party must furnish the Regional Director with the evidence available to it in
support of the objections. Rule 102.69(a). Although this period may be extended
by the Regional Director, it is, in the absence of an extension, strictly
enforced. StarVideo Entertainment L.P., 290 NLRB 1010
(1988); and Goody’s Family Clothing,
308 NLRB 181 (1992). See Public Storage,
295 NLRB 1034 (1989), in which the Board overruled a Regional Director’s
decision to accept late filed evidence, and Koons Ford of
Annapolis, 308 NLRB 1067 (1992). Compare
The evidence must establish a prima facie case in support
of its objections.
Under Section 102.69(d), the Regional Director may conduct either an administrative investigation of objections or set them for hearing or both. A hearing is held only when there are substantial and material issues of fact. Care Enterprises, 306 NLRB 491 (1992); and Speakman Electric Co., 307 NLRB 1441 (1992). See also Kerr-McGee Chemical Corp., 311 NLRB 447 (1993), in which a divided Board directed a hearing to “aid us in determining on which side of the line drawn by our case law this case falls.”
The Board will not consider allegations of misconduct unrelated to the objections unless the “objecting party demonstrates by clear and convincing proof that the evidence is not only newly discovered but was also previously unavailable.” Rhone-Poulenc, Inc., 271 NLRB 1008 (1984). This restriction does not apply to evidence discovered by the Regional Director. In fact, the Board will permit the Regional Director to set aside an election based on evidence uncovered during the investigation by the Regional Office even though it was not the subject of a specific objection. American Safety Equipment Corp., 234 NLRB 501 (1978). See also Burns Security Services, 256 NLRB 959 (1981).
For an excellent discussion of various aspects of the
problem of unalleged objections, see White
Plains Lincoln Mercury, 288 NLRB 1133 (1988). See also Framed
Picture Enterprise, 303 NLRB 722 (1991).
The Board distinguished the authority of a hearing officer from a Regional
Director in Precision Products Group,
319 NLRB 640 (1995). Thus, the hearing officer is constrained to
consider the issues encompassed by the Regional Director’s order setting matter
for hearing. The Board compared Iowa Lamb
Corp., 275 NLRB 185 (1985), with American Safety Equipment, supra. Accord: Fleet
See section 22-119 for a discussion of the nature of the record on appeal to the Board from a decision of the Regional Director or hearing officer.
A party to an election case is ordinarily estopped from relying on its own misconduct as objectionable. B. J. Titan Service Co., 296 NLRB 668 (1989), and Republic Electronics, 266 NLRB 852 (1983). The exception to this rule is the situation where the party causes an employee to miss the election, the employee’s vote is determinative, there is no evidence of bad faith, and the employee is disenfranchised through no fault of his or her own. Republic Electronics, supra at 853.
In Virginia Concrete Corp., 338 NLRB 1182 (2003), the Board overruled Ellicott
Machine Corp., 54 NLRB 732 (1944), a rather old case in which the Board had held
that it would treat the withdrawal of a charge without prejudice as an
automatic waiver by the petitioning union of the right to use the subject
matter of that charge as a basis for objections to the election. In the Great Atlantic & Pacific Tea Co., 101 NLRB 1118 (1952), the Board
abandoned the theory of waiver on which Ellicott
Machine was decided holding that the policies of the Act would best be
effectuated by considering on the merits any alleged interference which occurs
during the crucial period before an election “whether or not charges have been
filed.” 101 NLRB 1120–1121. A “request to
proceed” is not a waiver of a right to file objections. Graham Architectural
Products Corp., 259 NLRB 1174, 1181 (1982); Ed Chandler Ford, 241 NLRB 1201 (1979); and Bernel
Foam Products Co., 146 NLRB 1277 (1964).
The Board’s early decisions, at least until 1941, were predicated on two major concepts. First, that every appeal by an employer in opposition to unions violated the Wagner Act provision against interference, restraint, and coercion because it inevitably created a fear in the minds of employees that the employer would use economic power against those who disregarded the employer’s expressed desires. Second, that the choice of a bargaining representative was the exclusive concern of the employees and that the employer did not possess an interest sufficient to permit to intrusion. See Cox & Bok, Labor Law Cases and Materials, 170 et seq. (7th ed., 1969).
There was some conflict in the court of appeals and as is not infrequently the case when a conflict of principles becomes sharp enough in a significant area of law which by its nature is prone to a high emotional boiling point, the highest court of the land inevitably has to pass on it. This happened here. In 1941, in NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941), the United States Supreme Court was presented with the opportunity. The Court decided that the National Labor Relations Act did not prohibit employers from expressing their views about labor organizations, and this, for all practical purposes, marked the death knell of the so-called neutrality or enforced-silence requirement which had prevailed during the first 6 years. “The employer in this case,” said the Court, “is as free as ever to take any side it may choose on this controversial issue.”
This did not come as too great a surprise, for about a year earlier in Thornhill v. Alabama, 310 U.S. 88 (1940), the Supreme Court had made it clear that in the circumstances of our times “the dissemination of information concerning the facts of a labor dispute must be regarded as within the area of free discussion that is guaranteed by the Constitution” and that “labor relations are not matters of mere local or private concern.” Indeed, added the Court, “free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of industrial society.”
Looking deeper into Virginia
Electric, supra, which is our principal authority in the realm of free
speech under the National Labor Relations Act, we find further guidance. Free
as the employer is to express his views, the Court nonetheless admonished that
“conduct, though evidenced in part by speech, may amount, in connection with
other circumstances, to coercion within the meaning of the Act. If the total
activities of an employer restrain or coerce his employees in their free
choice, then those employees are entitled to the protection of the Act. And in
determining whether a course of conduct amounts to restraint or coercion,
pressure exerted vocally by the employer may no more be disregarded than
pressure exerted in other ways.”
The case itself was remanded to the Board which
subsequently held that the speech, not alone, but in the context of other
conduct found coercive, amounted to an unfair labor practice, a finding which
was ultimately upheld. Virginia Electric
& Power Co. v. NLRB, 132 F.2d 390 (4th Cir. 1942), affd. 319
However, although Virginia Electric & Power Co. v. NLRB, 314 U.S. 469 (1941), effectively ruled out the neutrality per se requirement and its correlative theory that every employer appeal inevitably created fear of economic reprisal in the minds of his employees, it did not answer all the questions, and some, even at this late date, are still with us.
Following the mandate of the Supreme Court, the Second Circuit in NLRB v. American Tube Bending Co., 134 F.2d 993 (2d Cir. 1943), cert. denied 320 U.S. 708 (1943), formally erected a tombstone to the memory of the “complete neutrality” doctrine. This is interesting since Judge Learned Hand wrote the opinion in American Tube Bending but also had given an exposition of the former rule in the earlier case of NLRB v. Federbush Co., 121 F.2d 954 (2d Cir. 1941), including his much quoted “words are not pebbles in alien juxtaposition” paragraph in that opinion.
The host of Board and court findings in unfair labor practice cases in the 1941–1947 period suggested that anything short of coercion, threats, or promises of economic benefits was privileged speech so long as the employer’s activities did not interfere with employees’ rights as guaranteed by the Act. But despite this implementation of the Supreme Court’s decision, agitation during the consideration of the Taft-Hartley Amendments in 1947 was potent enough to lead to the inclusion of a new provision in the form of Section 8(c), which reads as follows:
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.
The experts differ both
as to the necessity and the effect of this provision, although all seem to
agree that the legislative history surrounding its enactment is confusing. See
Cox, Some Aspects of the Labor-Management
Revisions Act, Harv. L. Rev. 1620 (1947); Wollett & Rowen, Employer Speech and Related Issues, 16
During the 22-year period that intervened between 1947, the year Section 8(c) was enacted, and the year 1969, serious questions had been posed in an area which inexorably appeared headed for a showdown: When is a statement a mere prophecy or prediction, and therefore not actionable as a basis for an 8(a)(1) violation or as ground for invalidating an election, and when is it a threat, and therefore both a statutory violation as well as objectionable preelection conduct?
Again, a crucial controversy in the “free speech” area, arriving several decades after Virginia Electric and its codifying statutory counterpart Section 8(c), reached the United States Supreme Court. The year was 1969 and the case was Gissel Packing Co., 395 U.S. 575 (1969). More specifically, it was that portion of Gissel which dealt with an appeal from the holding of the Board and the First Circuit in NLRB v. Sinclair Co., 397 F.2d 157 (1st Cir. 1968), a companion case, on first amendment grounds.
The First Circuit had enforced a Board order which, in pertinent part, was based on a finding that the employer’s communications with the employees reasonably tended to convey the belief that selection of the union in a forthcoming election could lead the employer to close the plant or to transfer the weaving production, with a resultant loss of jobs. The First Circuit also affirmed the Board’s invalidation of the election because the activities in question interfered with the exercise of a free choice.
The Supreme Court, with specific reference to the “free speech” issue, stated that an employer is free to communicate views on unionism or about a specific union, so long as the communications do not contain a threat of reprisal or force or promise of benefit. “He may even make a prediction,” added the Court, “as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization.”
Pinpointing the distinction between a threat and a
prediction, the Court went on to say (395
If there is any
implication that an employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities and known only to him,
the statement is no longer a reasonable prediction based on available facts but
a threat of retaliation based on misrepresentation and coercion, and as such
without the protection of the First Amendment. [Emphasis added.]
The Supreme Court found equally valid the findings by the First Circuit and the Board that the employer’s statements and communications were not cast as a prediction of demonstrable economic consequences, but rather as a threat of retaliatory action. It relied on the findings that the employer’s communications conveyed the following message: that the company was in a precarious financial condition; that the “strike-happy” union would in all likelihood have to obtain its potentially unreasonable demands by striking, the probable result of which would be a plant shutdown, as the past history of labor relations in the area indicated; and that the employees in such case would have great difficulty finding employment elsewhere.
In these circumstances, concluded the Court (395
The Board could
reasonably conclude that the intended and understood import of that message was
not to predict that unionization would inevitably cause the plant to close but
to threaten to throw employees out of work regardless of the economic realities.
[Emphasis added.]
In arriving at this conclusion, the Court pointed out that (1) the employer had no support for his basic assumption that the union, which had not yet even presented any demands, would have to strike to be heard, and (2) the Board has often found that employees, who are particularly sensitive to rumors of plant closings, take such hints “as coercive threats rather than honest forecasts.” See, for example, Kolmar Laboratories, 159 NLRB 805 (1966), enfd. 387 F.2d 833 (7th Cir. 1967); Suprenant Mfg. Co., 144 NLRB 507 (1963), enfd. 341 F.2d 756 (6th Cir. 1965).
Significantly, in responding to the argument that the line between permitted predictions and proscribed threats is too vague to stand up under the traditional first amendment analysis and the further argument that the Board’s discretion to curtail free speech rights is correspondingly too uncontrolled, the Supreme Court (395 U.S. at 620) acknowledged, in effect, the Board’s competence “to judge the impact of utterances made in the context of the employer-employee relationship,” and added the pointed comment that
an employer, who has control over that relationship and therefore knows it best, cannot be heard to complain that he is without an adequate guide for his behavior. He can easily make his views known without engaging in “`brinkmanship”’ when it becomes all too easy to “overstep and tumble over the brink.” [Emphasis added.] Wausau Steel Corp. v. NLRB, 377 F.2d 389 (7th Cir. 1967).
Following the Supreme Court’s pronouncement on the “free speech” issue, the Board and the courts have had occasion to decide cases in which the Gissel (Sinclair), decision was the touchstone.
In NLRB v. C. J. Pearson Co., 420 F.2d 695 (1st Cir. 1969), the First Circuit observed that it read the Supreme Court’s decision as indicating two ways in which an employer’s “predictions” as to possible unhappy consequences of unionization might transgress: (1) the employer might indicate that unnecessary consequences would be deliberately inflicted, i.e., a threat of retaliation, or (2) it might indicate consequences not within its control but described as probable or likely, when in fact there was no objective evidence of any such likelihood; i.e., a threat, albeit not retaliatory, but nonetheless improper.
The Board found employer conduct actionable which conveyed
the following message: It had determined the wage and benefit increases it
could afford to grant; and that if the anticipated demands of the union were
exorbitant, it would not only reject these demands, thus precipitating a
strike, but would close its plant before giving in to the union; that it could
afford to do this because it had other plants to which work had been shifted in
the past and could be again, or, alternatively, that the strikers would be
permanently replaced, losing their jobs. While an employer has the right to
present in a rational context its views on the potential disadvantages of
unionism, conjuring up the vision of a strike as inevitable, “a fact which he
is certainly in the best position to appreciate,” the Board reasoned, created
an obvious potential for interference with free choice. Setting aside the
election, the Board cited the comment of the Supreme Court in Gissel that an employer “can easily make
his views known without engaging in brinkmanship.” Unitec Industries, 180 NLRB 51 (1970). And, critically, the statements or predictions
of the possible adverse consequences of union organization must be based on
objective facts, Southern Labor Services, 336 NLRB 710 (2001), and AP Automotive Systems, 333 NLRB 581
(2001).
In a series of cases beginning with Eagle Comtronics, 263 NLRB 515 (1982), the Board set out the standard for assessing
employer remarks about the consequences of a strike. In Eagle the Board found that the statement that a striker could be
replaced by applicants on file was not a threat of job loss. But, where
employees are told “you could lose your job to a permanent replacement” the
Board found a threat of reprisal. Larson
Tool & Stamping
Remarks about high labor costs in the context of earlier
distributed literature pertaining to the removal of the parent company’s
operations to
On the other hand, “in the total context of the Employer’s noncoercive conduct during the election campaign,” the Board found no actionable threat in a Spanish letter to voters, which varied from the English version, and which contained the following:
These organizers will invite you to meetings, meals and perhaps even to have a drink, they will make promises which they will never keep, they will hurt your Employer, they will go on strike, etc. etc. And this will affect you, since you will lose days of work and will risk your stable position out of irresponsibility, and it will affect you also in an economic sense, since you will be paying your dues minus your regular wages, that is to say money will be missing as it always is during these demonstrations and absences from work.
The Board concluded that the above paragraph of the
Spanish version was no more than a statement of opinion predicting events that
might occur should the union win the election. Desert Laundry, 192 NLRB 1032 (1971). For a discussion of employer
statements concerning strikes as a consequence of unionism, see Fred Wilkinson Associates, 297 NLRB 737
(1990). Compare
The Board’s test regarding statements is whether a remark can reasonably be interpreted by an employee as a threat. The test is not the actual effect on the listener. Smithers Tire, 308 NLRB 72 (1992), and Teamsters Local 299 (Overnite Transportation), 328 NLRB 1231 fn. 2 (1999).
The Ninth Circuit, in NLRB v. Electric Co.; 438 F.2d 1102 (1971), recapitulated the Supreme Court’s holding by stating that “an employer may not impliedly threaten retaliatory consequences within his control, nor may he, in an excess of imagination and under the guise of prediction, fabricate hobgoblin consequences outside his control which have no basis in objective fact.” But, contrary to the Board, the court found nothing in expressions by a company supervisor which would constitute either an express or implied threat of retaliatory action. The statements, said the Ninth Circuit, must be considered “in the context of the factual background in which they were made, and in view of the totality of employer conduct.” Thus, the statements were, at most, “predictions of possible disadvantages which might arise from economic necessity or because of union demands or union policies.” Moreover, added the court, there was a factual basis for all the predictions made. Compare NLRB v. Raytheon Co., 445 F.2d 272 (9th Cir. 1971). See also Boaz Spinning Co. v. NLRB, 439 F.2d 876 (6th Cir. 1971). Churchill’s Restaurant, 276 NLRB 775 (1985).
However, in NLRB v.
Taber Instruments, 421 F.2d 642 (2d Cir. 1970), the Second Circuit enforced a Board order
predicated, inter alia, on statements such as these: “The men don’t realize
what they could lose in this election. If Teledyne chooses to, they could phase
out these operations throughout their other plants”; and “there was a
possibility that in the event that the union was successful that the Company,
if they thought it in their best interest, could move some of the departments
into other plants of the Teledyne Corporation.” Roskin Bros., Inc., 274 NLRB 413 (1985); Southwire
In Mohawk Bedding Co.,
204 NLRB 277 (1973), the Board found that the employer’s campaign
speeches and literature, as well as certain statements, taken as a whole,
created “an atmosphere of apprehension in the minds of the voters.” Among the
statements found objectionable was one, couched in the language of a
disclaimer, which, the Board found, underscored the threat: “Well, I don’t want
to threaten you, but it’s very important for you to understand something. If
the union wins the election tomorrow, and if in bargaining with us they really
try to make good on the fantastic figures mentioned in the leaflets, then we
could all be in for serious trouble.” He continued by stating that “there would
be a question as to whether the company could remain in business here.”
Moreover, it was the Board’s view that, by the employer’s repeated reference to
the union causing other plants to close and the high unemployment situation
locally, the employees could reasonably infer that their employment would be
jeopardized if they supported the union. See also General Electric Wiring Devices, 182 NLRB 876 (1970). Compare
In Renton Issaquah
Freightlines, 311 NLRB 178 (1993), the Board found as objectionable an employer’s
statement that the question of whether the plant would reopen depended on
whether the employees voted to decertify the union. The Board adopted the Regional Director’s
finding that the prediction of dire consequences if the employees did not
decertify the union interfered with the election. See also Madison
Industries, 290 NLRB 1226 (1988), cited by the Board in
In Glasgow
Industries, 204 NLRB 625 (1973), despite a general manager’s avowal that he
wanted to win the election but to run “a clean campaign that was entirely
within the law,” and the use of a “checklist” of “do’s and don’ts” to guide
supervisory conduct, statements were made which required the Board to invalidate
the election. Thus, a foreman told an employee that “if the Union comes in, the
order will be cancelled and you will have no work”; another foreman stated that
“if you all vote this Union in, this plant could move to
If there is any implication that employer may or may not take action solely on his own initiative for reasons unrelated to economic necessity and known only to him, the statement is no longer a reasonable prediction based on available facts, but is a threat of retaliation based on misrepresentation and coercion and, as such, without the protection of the First Amendment. Gissel, supra, p. 618. Any balancing of the rights of the employees under §7, as protected by §8(a)(1) and the proviso in §8(c), must take into account the economic dependence of the employees on the employers and the necessary tendency of the former, because of that relationship, to be alerted to intended implications of the latter that might be more promptly dismissed by one who was entirely disinterested. Beyond question, employees are particularly sensitive to rumors of plant closing and view such rumors as coercive threats, rather than honest forecasts.
In SPX Corp., 320 NLRB 219 (1995), the Board rejected the employer’s contention that its statement that its customers would not use union contractors was unobjectionable. The Board relied on the absence of any record support for the employer’s statement.
In Georgia-Pacific
Corp., 325 NLRB 867 (1998), a divided Board found
objectionable an employer preelection announcement that being represented by
the
For an analysis of the views of two circuits which have rejected Board positions and found conduct to be predictions based on objective facts, see NLRB v. Shenanigans, 723 F.2d 1360 (7th Cir. 1983); and Patsy Bee, Inc. v. NLRB, 654 F.2d 515 (8th Cir. 1981). Compare Zim’s Foodliner v. NLRB, 495 F.2d 1131 (7th Cir. 1974).
In an area characterized by a myriad of different factual situations, involving all kinds of nuances and shades of difference, any attempt at a ready-reference primer is doomed to failure. Nonetheless, it is possible to cull general principles from specific cases and to attempt to extract the reasons which brought these principles into being. Moreover, despite the large number of variations, it is also reasonably possible to group areas which have much in common under separate headings. Thus, for example, preelection campaign interference may be the subject both of unfair labor practice proceedings and objections to the election; it may consist of conduct of the General Shoe Corp., 77 NLRB 124 (1948), type which does not, for one reason or another, also violate the unfair labor practice provisions of the Act; it may be conduct attributable to a third party; or it may involve the infringement of a per se rule. With the exception of conduct which is an unfair labor practice (see sec. 24-310), all of these areas are considered in this chapter.
In Taylor Wharton Division, 336 NLRB 157 (2001), the Board stated:
[The] proper test for evaluating conduct of a party is an
objective one—whether it has “the tendency to interfere with the employees’
freedom of choice.”
Accord:
Conduct which by statutory proscription constitutes unfair
labor practice violations may also be, as we shall soon see, the basis for
invalidating an election, if merit is found in the objections in which they are
alleged. As the Board commented in Playskool
Mfg. Co., 140 NLRB 1417 (1963), “conduct of this nature which is violative of
Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a
free and untrammeled choice in an election.” See also IRIS U.S.A., Inc.,
336 NLRB 1013 (2001); Diamond
Walnut Growers, Inc., 326 NLRB 28 (1998). This is so “because the test of conduct which
may interfere with the “laboratory conditions’ for an election is considerably
more restrictive than the test of conduct which amounts to interference,
restraint, or coercion which violates Section 8(a)(1).” Dal-Tex Optical
Earlier editions of this text included considerable discussion of unfair labor practice cases which arose during election campaigns and thus became the basis for election objections. This material duplicated unfair labor practice texts and did not add significantly to a study of representation case law. Accordingly, the material has not been included in this edition and the researcher is directed to those research tools which index unfair labor practice case law.
It is important, however, to add a caveat to the a fortiori statements cited above. That caveat is that not all unfair labor practice conduct will warrant setting aside an election. In Caron International, 246 NLRB 1120 (1979), the Board rejected a per se approach to the a fortiori language of Playskool. Instead, the Board announced that it would examine the unfair labor practice conduct to determine whether it was extensive enough to interfere with the election. See also Video Tape Co., 288 NLRB 646 (1989); Metz Metallurgical Corp., 270 NLRB 889 (1984); and General Felt, 269 NLRB 474 (1984). See also Recycle America, 310 NLRB 629 (1993), in which the Board found that the unfair labor practices were not sufficient to set aside the election.
The test is an objective one—whether the conduct has a
tendency to interfere with employee free choice.
In one interesting case, the Board found that an assertion by a union that employees would lose their jobs if they voted against the union was not objectionable. The Board likened this statement to that in Janler Plastic Mold Corp., 186 NLRB 540 (1970), and characterized it as illogical. The Board compared that situation with that in NLRB v. Valley Bakery, 1 F.3d 769 (9th Cir. 1993); Underwriters Laboratories, 323 NLRB 300 (1997).
In addition, the Board has held that certain unfair labor practice conduct does not pose a threat of restraint and coercion of employees and therefore is not a fortiori objectionable conduct. Thus, in Holt Bros., 146 NLRB 383 (1964), the Board found that the entering into of a contract which contained a clause prohibited by Section 8(e) of the Act was not objectionable. See also ARA Living Centers, 300 NLRB 888 (1990), in which the Board reached a similar result with respect to picketing in violation of Section 8(g) of the Act which occurred at another facility of the employer and which was publicized to the employees by the employer. Compare Curtin Matheson Scientific, 310 NLRB 1090 (1993), finding an unlawful no-solicitation rule to be objectionable.
As discussed more fully in section 24-310, the Board does not find that any unfair labor practice conduct warrants setting aside an election. It goes without saying, therefore, that not all otherwise unlawful conduct will set aside the election.
As the Board noted in Airstream, Inc., 304 NLRB 151, 152 (1991):
A violation of Section 8(a)(1) found to have occurred during the critical election period is, a fortiori, conduct which interferes with the results of the election unless it is so de minimis that it is “virtually impossible to conclude that [the violation] could have affected the results of the election.” Enola Super Thrift, 233 NLRB 409 (1977).
The
Board has applied the “virtually impossible” standard in consolidated unfair
labor practice and representation cases in which conduct found to violate
Section 8(a)(1) is also alleged in election objections. That standard does not
apply in representation proceeding where there are no unfair labor practice
allegation or finding. NYES Corp.,
343 NLRB No. 87 fn. 2 (2004). Instead the Board applies the
standard set forth in Cambridge Tool
& Mfg. Co., 316 NLRB 716 (1995), viz., whether the misconduct, taken as
a whole, warrants a new election because it has “the tendency to interfere with
the employees’ freedom of choice” and “could well have affected the outcome of
the election.” Metaldyne Corp.,
339 NLRB 443 (2003). See also Waste
Management of Pennsylvania, 314 NLRB 376 (1994). See also Mercy General Hospital, 334 NLRB 100 (2001).
In Bon Appetit Management Co., 334 NLRB 1042 (2001), the Board described the test
for determining whether conduct is de minimis. See also Sir Francis Drake
Hotel, 330 NLRB 638 (2000) (margin of election results can be a factor);
and Chicagoland Television News, 330 NLRB 630 (2000).
The general rule is that the Board will not permit the litigation of unfair labor practice cases in representation proceedings. See section 3-920 of this text.
This does not mean of course that the Board will not consider unfair labor practice findings in deciding objection cases. Rather, as discussed more fully, supra (sec. 24-310), unfair labor practice conduct that is litigated in an unfair labor practice case can also be found to be objectionable conduct.
But, in the absence of a complaint, the Board will not
consider some unfair labor practice issues in objections or challenge
proceedings especially those involving Section 8(a)(3).
In Gaylord Bag Co., 313 NLRB 306 (1993), the Board rejected an employer’s contention that settlement of unfair labor practice charges against a union precluded its ability to establish that a petition should be dismissed. The Board, in doing so, noted that these are independent matters.
As indicated, the narrowness of the vote in an election is a relevant consideration. Robert Orr–Sysco Food Services, 338 NLRB 614 (2002). It is not however dispositive and as the Board noted in Accubuilt, Inc., 340 NLRB No. 161 (2003), it will assess the general atmosphere at the location “rather than comparing the number of employees subject to any sort of the threats against the vote margin.” See also Lamar Advertising of Janesville, 340 NLRB No. 114 (2003).
In assessing whether conduct interfered with the election “the Board considers the number of incidents, their severity, the extent of dissemination, the size of the unit and other revelant factors,” Archer Services, 298 NLRB 312 (1990). See also Gold Shield Security & Investigations, 306 NLRB 20 (1992); and Peppermill Hotel Casino, 325 NLRB 1202 fn. 2 (1998) (dissemination to even one voter could have affected results of election that ended in a tie vote).
In Crown Bolt, Inc.,
343 NLRB No. 86 (2004), a
divided full Board reversed Springs Industries, 332 NLRB
40 (2000), and “all other decisions in
which the Board has presumed dissemination of plant-closure threats or other
kinds of coercive statements.” The Board
stated that such threats are “very severe” but that “severity of a threat is
one factor, among several, to be considered in deciding whether to set aside an
election. See Caron International, 246 NLRB 1120 (1979) (noting the factors the Board considers in
deciding whether misconduct affected the results of an election; factors
include the number of violations, their severity, the extent of dissemination
and the size of the unit).” (Slip op. at 4.)
See also MB Consultants, Ltd.,
328 NLRB 1089 (1999); Eric
Brush & Mfg. Corp., 338 NLRB 1100 (2003); and Hollingsworth Management Service, 342 NLRB No. 50 (2004).
In Freund Baking Co., 336 NLRB 847 (2001), a divided panel concluded
that a security/confidential information provision in an employee handbook was
both unlawful and objectionable. The
provision limited discussion among employees of inter alia, wages, hours, and
conditions of employment. Compare Safeway,
Inc., 338 NLRB 528 (2003).
We turn now to conduct, often the relevant basis for setting aside an election, which is not also violative of any of the unfair labor practice provisions of the Act. Broadly speaking, the areas of interference with elections we shall now consider stem out of the General Shoe doctrine, formulated by the Board in 1948 (General Shoe Corp., 77 NLRB 124 (1948)). Enunciated shortly after the 1947 amendments when Section 8(c) was already on the books, it suggests itself as a good beginning for a phase of preelection campaign interference which, being confined to representation proceedings, merits even more emphasis in a volume such as this.
The General Shoe doctrine holds that conduct which creates an atmosphere which renders improbable a free choice will warrant invalidating an election, even though that conduct may not constitute an unfair labor practice. In adopting this rule, the Board rejected the contention that the criteria applied by the Board in a representation case to decide whether an election was interfered with need necessarily be identical to those used to determine whether an unfair labor practice had been committed.
In General Shoe itself, a consolidated complaint and representation proceeding, although the respondent’s activities immediately before the election were not held to constitute unfair labor practices, certain of these activities were nonetheless found to have created “an atmosphere calculated to prevent a free and untrammeled choice by the employees.”
The Board summarized the doctrine in the following language:
In election proceedings, it is the Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish those conditions; it is also our duty to determine whether they have been fulfilled. When, in the rare extreme case, the standard drops too low, because of our fault or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again. [11 NLRB at 127.]
At the same time, the Board noted that Congress only applied what was then the new Section 8(c) to unfair labor practice cases.
Years later, when this dichotomy was again examined by the
Board, it reaffirmed its original view by stating that “Congress specifically
limited Section 8(c) to the adversary proceedings involved in unfair labor
practice cases and it has no application
to representation cases,” reversing specifically several of its decisions
during an intervening period which suggested the contrary. The Board added,
however, that the “strictures of the first amendment, to be sure, must be
considered in all cases.” Dal-Tex Optical
Under the General Shoe heading, it is also important to again emphasize what we have done before—that the test of conduct which may interfere with the “laboratory conditions” for an election is considerably more restrictive than the test of conduct amounting to interference, restraint, or coercion which violates Section 8(a)(1). See, for example, the decision in Edward J. DeBartolo Corp., 313 NLRB 382 (1993), where the Board found that the refusal of the union to leave the employer’s premise did not interfere with the election distinguishing the Supreme Court’s decision in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), relied on by the employer.
An Exception—In Showell Poultry
For a summary of the factors which the Board evaluates in
deciding whether the employees could freely and fairly exercise free choice in
the election. See Phillips Chrysler
A few recent cases reflect the Board’s policy on types of objectionable conduct. See, for example, Sun Mart Foods, 341 NLRB No. 22 (2004) (promises to remodel store); Deaconess Medical Center, 341 NLRB No. 79 (2004) (promise to restore wages); STAR, Inc., 337 NLRB 962 (2002) (grant of wage increase); Petrochem Insulation, Inc., 341 NLRB No. 60 (2004) (threat of reduced wages); and Waste Management, Inc., 330 NLRB 634 (2000) (discriminatory bulletin board policy); Network Ambulance Services, 329 NLRB 1 (1999) (holiday benefits granted during critical period, not objectionable); United Methodist Home of New Jersey, 314 NLRB 687 (1994); Kauai Coconut Beach Resort, 317 NLRB 996 (1995) (timing of pay raises); Steeltech Mfg., 315 NLRB 213 (1994) (promulagation of rules during critical period); Lutheran Retirement Village, 315 NLRB 103 (1994); ADIA Personnel Services, supra (promise of benefits); Ameraglass Co., 323 NLRB 701 (1997) (acceleration of benefits); Comet Electric, 314 NLRB 1215 (1994) (failure to pay employees for attendance at captive audience speech); JTJ Trucking, 313 NLRB 1240 (1994) (union statement of no health coverage if employees vote against union found not objectionable); Lalique N.A., Inc., 338 NLRB 986 (2003) (union promise of medical benefits if it won election not objectionable); Nestle Dairy Systems, 311 NLRB 987 (1993), enf. denied 46 F.3d 578 (6th Cir. 1995) (filing RICO lawsuit, not objectionable). Washington National Hilton Hotel, 323 NLRB 222 (1997), offering to put employees in contact with a news reporter who was doing a story on organizing, not objectionable. MacDonald Machinery Co., 335 NLRB 319 (2001). Compare Majestic Star Casino, LLC, 335 NLRB 407 (2001). For an extensive discussion of whether or not an employer breach of its own no-solicitation rule is objectionable, see Hale Nani Rehabilitation & Nursing, 326 NLRB 335 (1998).
In two other recent cases, the Board found that added security measures after the filing of the petition including an additional armed guard on the day of the election was not objectionable─Quest International, 338 NLRB 856 (2003), and that an employer memorandum to employees indicating the possible loss of benefits in negotiations if the union won the election was not a basis for setting aside the election. Manhattan Crowne Plaza Town Park Hotel Corp., 341 NLRB No. 90 (2004).
In one interesting case, the Board found that the employer did not engage in objectionable conduct when it posted a letter from a customer indicating that unionization by the employees might occasion the customer making other business arrangements. Eagle Transport Corp., 327 NLRB 1210 (1999).
Frequently the issue is the timing of the grant of benefit. The general rule is that “the employer is required to proceed with projected wage or benefit improvements as if the union were not on the scene.” Niblock Excavating, Inc., 337 NLRB 53 (2001); Network Ambulance Services, 329 NLRB 1 (1999); and Waste Management of Palm Beach, 329 NLRB 198 (1999). Compare Tinius Olsen Testing Machine Co., 329 NLRB 351 (1999) (change required by contract not objectionable). See also Onan Corp., 338 NLRB 913 (2003); and Mercy Hospital Mercy Southwest Hospital, supra.
As the Board explained more fully in United Airlines
Services Corp., 290 NLRB 954 (1988):
It is well established that the mere grant of benefits
during the critical period is not, per se, grounds for setting aside an
election. Rather, the critical inquiry
is whether the benefits were granted for the purpose of influencing the
employees’ vote in the election and were of a; type reasonably calculated to
have that effect. NLRB v. Exchange Parts Co., 375
The Board will permit an employer to describe and make a
comparison of its benefits for its unrepresented employees provided that this is
not accompanied by an implied promise of benefit. Suburban Journals of Greater
With respect to union promises of benefit, the Board has held that “Employees are generally able to understand that a union cannot obtain benefits automatically by winning an election but must seek to achieve them through collective bargaining. Union promises . . . are easily recognized by employees to be dependent on contingencies beyond the union’s control and do not carry with them the same degree of finality as if uttered by an employer who has it within his power to implement promises of benefits. Smith Co., 192 NLRB 1098, 1101 (1971). See also Lalique N.A., Inc., supra.
Alyeska Pipeline Service Co., 261 NLRB 125 (1982), represents a limited exception to this general
rule. In Alyeska, the union controlled “all access to construction jobs
in
For discussion of supervisory prounion conduct see 24-328.
Among the issues that the Board has had to determine in this area of law is the one that deals with the assembly of employees by the employer at a focal point of authority. Indeed, in General Shoe itself this was a question for the Board to decide.
On the day before the election the employer had the employees brought to his office in 25 groups of 20 to 25 and, in the language of that decision, “in the very room which each employee must have regarded as the locus of final authority in the plant, read every small group the same intemperate anti-union address.” In the same case, the employer instructed his supervisors “to propagandize employees in their homes.” The Board found that this went “so far beyond the presently accepted custom of campaigns directed at employees’ reasoning faculties that we are not justified in assuming that the election results represented the employees’ own true wishes.” These were not unfair labor practice findings. They were determinations based on the policy that matters which may not be available to prove a violation, but may still be pertinent, “if extreme enough”—to borrow a Board phrase—in deciding whether an election satisfies the Board’s own administrative standards.
In Economic Machinery Co., 111 NLRB 947 (1955), “the technique of calling the employees into the Employer’s office individually to urge them to reject the Union,” the Board held, “is, in itself, conduct calculated to interfere with their free choice in the election.” The employer had privately interviewed all employees in his office. In some instances the interviews were as long as 3 hours. The Board reasoned that this was interference with the election “regardless of the non-coercive tenor of an employer’s actual remarks.”
Where company officials and supervisors called at employees’ homes, the Board found that the cumulative effect of the interviews in these circumstances, which admittedly established the company’s disapproval of the petitioning union, interfered with their free choice. In this posture, too, the election was set aside despite the absence of actual coercion. The Board reiterated the rule which consistently condemns the technique of calling all or a majority of the employees in the unit into the employer’s office individually or calling on them at their homes to urge them to reject a union as their bargaining representative. Peoria Plastic Co., 117 NLRB 545 (1957); see also Hurley Co., 130 NLRB 282 (1961).
In NVF Co., 210 NLRB 663 (1974), the Board concluded that cases involving the technique of calling employees either individually or in small groups into private areas to urge them to vote against the union was not per se objectionable. Rather, each case will be considered on its facts to determine whether the election represents the employee’s wishes. See also Flex Products, 280 NLRB 1117 (1986).
“The unique effectiveness of speeches addressed to employees assembled during working hours at the locus of their employment,” the Board noted, “has received congressional and judicial recognition and has been substantiated by research studies.” See H. W. Elson Bottling Co., 155 NLRB 714, 716 fn. 7 (1965); also NLRB v. United Aircraft Corp., 324 F.2d 128 (2d Cir. 1963), cert. denied 376 U.S. 951 (1964). It would seem that a vital factor in the Board’s reasoning is that when individual employees are taken from their workplaces and subjected to antiunion propaganda at the hands of a supervisor in the privacy of a company office or in an isolated area away from other employees, there is a “likelihood that outright fear or uneasiness tinged with fear as to the consequences of unionism will be created in the mind of the employee thus singled out for special attention.” Great Atlantic & Pacific Tea Co., 140 NLRB 133, 134 (1963).
The rationale for invalidating elections involving the
assembly of employees is not unlike the rationale in cases involving home
visitations by officials and supervisors of the employer. In the latter
situation the Board has made it clear that, whether or not the remarks during
such visitations were coercive in character, the technique of visiting
employees at their homes to urge them to reject the union as their bargaining
representative is a ground for setting aside an election. See, for example, F. N. Calderwood, Inc., 124 NLRB 1211
(1959). The crux of that rationale is in the fact that
the employer has “the position of control over tenure of employment and working
conditions which imparts the coercive effect to systematic individual
interviews” that it conducts.
The Board does not use a mechanistic approach but gives full consideration to all the circumstances. Thus, where 2 days before an election, several nurses aides were appealed to for a no-vote in noncoercive terms by the employer’s executive director at a meeting in the nursing director’s office, this incident was held not to justify setting aside the election under the General Shoe Corp., 77 NLRB 124 (1948), “locus of managerial authority” doctrine, since the office was the regular place of work of the admissions nurse and had been used for training sessions. Three Oaks, Inc., 178 NLRB 534 (1969).
A significant exception to the rule relating to employee interviews at the plant is found in Mall Tool Co., 112 NLRB 1313 (1955). In that case, the employer spoke to about half of its employees at their workbenches. The interviews lasted no more than 3 minutes. In these circumstances, the interviews were distinguished from the Economic Machinery Co., 111 NLRB 947 (1955), type and found not to constitute a basis for upsetting the election. See also Frito Lay, Inc., 341 NLRB No. 65 (2004) (use of “ride-alongs”─management representatives who rode with unit drivers to discuss working conditions─not objectionable).
Before leaving this line of cases, it should be explained that the Board has not drawn an analogy between home visitations by union representatives in the preelection period and home visitations by supervisors. “There is a substantial difference,” the Board pointed out, “between the employment of the technique of individual interviews by employers on the one hand and by the union on the other. Unlike employers, unions often do not have the opportunity to address employees in assembled or informal groups, and never have the position of control over tenure of employment and working conditions which imparts the coercive effect to systematic individual interviews conducted by employers. Thus, not only do unions have more need to seek out individual employees to present their views, but, more important, lack the relationship with the employees to interfere with their choice of representatives thereby.” Plant City Welding, supra at 133–134.
In 1982, the Board decided to abandon its policy of
regulating misrepresentations in election campaigns. Thus, in Midland National Life Insurance Co., 263
NLRB 127, 130 (1982), the Board held that it would “no longer probe
into the truth or falsity of the parties’ campaign statements.” This decision
ended the debate of many years as to what role the Board should take as to
misleading campaign statements. Compare
The Sixth Circuit has a somewhat modified view of the
Board’s
Midland National
did, however, indicate a continued Board concern over “forged documents which
render the voters unable to recognize propaganda for what it is.” Thus, if the
deceptive manner used renders it unlikely that the voters will be able to
assess the documents as forgeries, the Board will set aside the election.
A misstatement of the law is not objectionable conduct. Thus, in John W. Galbreath & Co., 288 NLRB 876 (1988), the Board overruled objections to an election where an employer stated that an employee who is expelled from the union could be fired here is a union-security agreement in effect. Accord: Seven-Up/Royal Crown Bottling Cos., 323 NLRB 579 (1997). See also Virginia Concrete Corp., 338 NLRB 1182 (2003).
See Pacific Southwest
Container, 283 NLRB 79 (1987), in which the Board, distinguishing Midland National set aside an election
because of confusion over the identity of the union.
Campaign propaganda calculated to inflame racial prejudice
of employees, deliberately seeking to overemphasize and exacerbate racial
feeling by irrevelant, inflammatory appeals, is a basis for setting aside an
election. Sewell Mfg. Co., 138 NLRB
66 (1962); and YKK
(
This rule was applied in Sewell Mfg. in these factual circumstances.
An election was scheduled at two small
[A]ppeals to racial prejudice on matters unrelated to the election issues or to the union’s activities are not mere “prattle” or puffing. They have no place in Board electoral campaigns. The Board does not intend to tolerate as “electoral propaganda” appeals or arguments which can have no purpose except to inflame the racial feeling of voters in the election.
That is not to say that a relevant campaign statement is to be condemned because it may have racial overtones. [138 NLRB at 71.]
On the same day the Board decided Sewell Mfg. Co., 138 NLRB 66 (1962) case, it also decided Allen-Morrison Sign Co., 138 NLRB 73 (1962), which arose in another region and in which the injection of “the extraneous issue of race hatred” in the context of a Board election was also raised. In that case, the Board concluded that the employer’s letter was “temperate in tone and advised the employees as to certain facts concerning union expenditures to help eliminate segregation,” adding that it was “not able to say that the Employer in this case resorted to inflammatory propaganda on matters in no way related to the choice before the voters.” The election was upheld. From both decisions the following standard for determination emerges.
So long as a party limits itself to setting forth truthfully another party’s position on racial matters and does not deliberately seek to exacerbate racial feelings by irrelevant, inflammatory appeals, the election will stand, but the burden is on the party making use of a racial message to establish that it was truthful and germane, and where there is doubt as to whether the total conduct of such party is within the described bounds, the doubt will be resolved against the party.
For example, the Board applied the Sewell rule where it found handbill references, which may have
satisfied the standard of truthfulness, but were “irrelevant to any aspect of
the IBEW’s campaign.” It also took into consideration the coupling of the
irrelevant statement with a cartoon which appeared on the front page of the two
area newspapers under the headline of an IBEW publication, depicting Blacks and
whites marching together with arms linked and carrying a banner entitled “We
Shall Overcome.” Captions under the cartoon read “Where did the above slogan
originate?” and “Just a Reminder!” The Board concluded that the employees were
inhibited by appeals to their sentiments as civic minded individuals, by the
injection of the fear of personal economic loss, and by playing on racial
prejudice, the full-page ads, the editorials, the cartoon, and the handbills
were calculated to convince them that a vote for the union meant the betrayal
of the community’s best interests. While there was no evidence that the
employer was responsible for this propaganda, the result achieved was
nonetheless the same. Universal Mfg. Corp.,
156 NLRB 1459 (1966). The Sewell
rule, as this case illustrates, is therefore also applicable where the
objectionable conduct is engaged in by third parties. Compare El Fenix Corp., 234 NLRB 1212, 1213
(1978), where a single ethnic slur by an employee
nonagent was not considered objectionable. See also Benjamin Coal Co., 294 NLRB 572 (1989), in which the Board found that the union was
not responsible for the racial and ethnic statements of some of its committee
members when the union discouraged such statements. See also
In NLRB v. Schapiro & Whitehouse, Inc., 356 F.2d 675 (4th Cir. 1966), the Fourth Circuit applied Sewell to union propaganda. The court found that campaign literature distributed by a union on two occasions shortly before a consent election which urged employees, most of whom were Blacks, to consider and act on race as a factor in the election was so irrelevant and inflammatory as to invalidate the election. In doing so, the court specifically approved the Sewell standards (at 679).
As in the case of employer inflammatory racial appeals (for example, Allen-Morrison Sign Co., 138 NLRB 73 (1962), so in union inflammatory appeals, factual distinctions may call for a different result. Thus, while the theme in Archer Laundry Co., 150 NLRB 1427 (1965), was admittedly based on a racial issue, distinguishing implications were found. Instead of racial appeals designed to engender race hatred, the appeals in Archer were regarded as designed to engender “racial self-consciousness.” For further discussion of the distinction between “consciouness raising” and racial prejudice see NLRB v. Sumter Plywood, 535 F.2d 917 (5th Cir. 1977), concerted action aimed at addressing themselves to the larger issue of the advantages and disadvantages of a union for the Archer laundry workers who were predominantly Black, and concerted action in the form of a union was another way by which the Blacks could strive to achieve equality in American society. The racial appeals in that context were therefore not considered irrelevant within the meaning of the criteria under discussion here. See also Aristocrat Linen Supply Co., 150 NLRB 1448 (1965); Coca-Cola Bottling Co., 273 NLRB 444 (1984); and Dai-Ichi Hotel Saipan Beach, 326 NLRB 458 (1998).
This distinction was also emphasized in another case in which the Board stressed the fact that in Sewell the campaign arguments were inflammatory in character, “setting race against race,” an appeal to animosity rather than to consideration of “economic and social conditions and of possible actions to deal with them.” This constrasts with the situation in which the union argument is not unreasonable, or irrelevant, or intemperately presented to the electorate. Baltimore Luggage Co., 162 NLRB 1230 (1967) (which includes a thorough rationale of the principles which govern this phase of the law). See also Hobco Mfg. Co., 164 NLRB 862 (1967).
Although in another case a racial appeal, as such, was not made in the preelection campaign, a rumor had been circulated throughout the plant 5 days before the election to the effect that the company’s president had stated at a laundry association meeting that if the union lost the election he would discharge the Black employees. However, the Board found that the impact of the rumor was sufficiently neutralized and dissipated before the election by repeated disclaimers by both the union and the company. The union disassociated itself from the rumor and urged the employees to disregard it at two union meetings, and the company in oral denials and in a letter to all employees denounced the rumor as “poisonous.” Thus, in the Board’s view, the combined disclaimers were sufficient to transform it into the type of propaganda which the employees were capable of evaluating. Staub Cleaners, 171 NLRB 332 (1968). See also Kresge-Newark, Inc., 112 NLRB 869, 871 (1955).
The Sewell rule
requires that race or ethnicity must be a significant and sustained aspect of
the campaign for the Board to find objectionable conduct. Beatrice Grocery Products, 287 NLRB 302 (1987);
The Board reached a similar result in KI (USA) Corp., 309 NLRB 1063 (1992), where in a divided opinion the Board found that the union’s reproduction of letter from a Japanese official concerning American workers was not objectionable.
The Excelsior rule requires the employer to file with the Regional Director an election eligibility list containing the names and addresses of all eligible voters within 7 days after approval by the Regional Director of an election agreement or after a direction of election, and this information must be made available by the Regional Director to all parties in the election proceeding. Excelsior Underwear, 156 NLRB 1236 (1966). See also J.P. Phillips, Inc., 336 NLRB 1279 (2001) (duty to send Excelsior list to the parties lies squarely with the Region).
Compliance requires that the employer provide the full first and last name of the
employees. Laidlaw Waste Systems, 321
NLRB 760 (1996);
To be timely, the eligibility list must be received by the Regional Director within the required time; no extension of time is granted except in extraordinary circumstances. The filing of a petition for review does not stay this requirement. If the payroll period for eligibility purposes is subsequent to the election agreement or direction of election, the list must be filed within 7 days after the close of the determinative eligibility period. Failure to comply with this rule is deemed interference with the election and a ground, on proper objection, for invalidating the election.
Where the employer filed the list 11 days late without offering any reason for the delay other than that it was due to an “unintentional oversight,” the Board held that the employer had not complied with the Excelsior requirement and set the election aside. Rockwell Mfg. Co., 201 NLRB 356 (1973). In doing so, it distinguished U. S. Consumer Products, 164 NLRB 1187 (1967), in which the delay was due to the parties’ negotiations in attempting to resolve the representation issue so as to make the Excelsior list unnecessary. Compare also Taylor Publishing Co., 167 NLRB 228 (1967), where the unit was large and the list only 1 day late. See also Wedgewood Industries, 243 NLRB 1190 (1979); and Red Carpet Building Maintenance Corp., 263 NLRB 1285 (1982). See also Alcohol & Drug Dependency Services, 326 NLRB 519 (1998).
More recently, the Board had occasion to discuss late filings of the list and reach different conclusions where the list was late and incomplete, Special Citizens Futures Unlimited, 331 NLRB 160 (2000) (election set aside) and where it was only 1 day late but was complete, Bon Appetit Management Co., 334 NLRB 1042 (2001) (election not set aside). See also Mod Interiors, 324 NLRB 164 (1997).
Even in situations where the employer has fully complied with Excelsior, there may be a basis for rerunning the election because the touchstone is “the degree of prejudice to the channels of communication.” See, e.g., Avon Products, 262 NLRB 46 (1982), in which a grant of a request for review expanded the unit and Coca-Cola Co. Foods Division, 202 NLRB 910 (1973), where the Regional Office misaddressed the envelope sending the list to the union. See also American Laundry Machinery Division, 234 NLRB 630 (1978). Compare, Red Carpet Building Maintenance Corp., 263 NLRB 1285 (1982). In J.P. Phillips, Inc., supra, the Board found predjudice to one of the two unions because it received an incomplete copy from the Region.
The Excelsior rule applies to all election cases, including decertification and revocation of union-security authorization, consented to or directed, but it does not apply to expedited elections held pursuant to Section 8(b)(7)(C) of the Act. In Gerland’s Food Fair, 272 NLRB 294 (1984), the Board set aside the election where the Regional Office failed to provide the RD petitioner with a copy of the list.
In adopting the Excelsior rule, the Board noted that disclosure under it will maximize the likelihood that all voters will be exposed to arguments for, as well as against, union representation; that it will permit the employees to make a more fully informed and reasoned choice; that it will tend to eliminate challenges to voters based solely on lack of knowledge of their identity; that many objections to elections will be settled well in advance of the election; and that the public interest will be furthered in obtaining more prompt resolutions of questions of representation.
In Fenfrock Motor Sales, 203 NLRB 541 (1973), the Board found that providing the Excelsior list to a third party under court order was not objectionable where there was no evidence that extensive questioning of employees before and after the election had an effect on employee free choice.
Viewed in historical perspective, it may be recalled that
the Excelsior case was decided at the
same time as General Electric Co.,
161 NLRB 618 (1966); and McCulloch Corp., 156 NLRB 1247 (1966), unfair labor practice
proceedings in which it was urged that the Board should overrule Livingston Shirt Corp., 107 NLRB 400
(1954), and return to Bonwit Teller, Inc., 96 NLRB 608 (1951), remanded 197 F.2d 640 (2d
Cir. 1952), cert. denied 345 U.S. 905 (1952). In Bonwit
Teller, the Board held that, regardless of the breadth of an employer’s
no-solicitation rule, an antiunion speech on company time and premises,
combined with a denial of a union request to reply, is a basis for setting
aside a subsequent representation election and finding an unfair labor
practice. In General Electric and McCulloch, supra at 1251, the Board
declined to overrule
As noted earlier, compliance requires that the employer provide the full first and last name of the employees. Laidlaw Waste Systems, 321 NLRB 760 (1996), supra.
In the period following the adoption of the Excelsior rule, the Board has had occasion to consider a variety of fact situations in which employers have made some attempt, but failed, to comply strictly with the requirements of that rule. In deciding whether the noncompliance was sufficient to warrant another election, the Board stated that there is “nothing in Excelsior which would require the rule stated therein to be mechanically applied.” Telonic Instruments, 173 NLRB 588 (1969). See also General Time Corp., 195 NLRB 343 (1972); Program Aids Co., 163 NLRB 145 (1967); and Thrifty Auto Parts, 295 NLRB 1118 (1989).
Thus, although the submission of an inaccurate, incomplete, or late list may provide a basis for invalidating an election, it nonetheless depends on the specific factual circumstances. In Telonic, for example, the omissions were confined to 4 of about 111 eligible voters and the employer acted with alacrity in informing the Region and the union that the list was incomplete. The Board found substantial compliance with the rule. “Generally, the Board will not set an election aside because of an insubstantial failure to comply with the Excelsior rule if the employer has not been grossly negligent and has acted in good faith.” Lobster House, 186 NLRB 148 (1970). See also Fountainebleu Hotel Corp., 181 NLRB 1134 (1970); Gamble Robinson Co., 180 NLRB 532 (1970); Program Aids Co., supra; Valley Die Cast Corp., 160 NLRB 1881 (1966). Where the employer obtained the addresses from W-4 forms but omitted one name because he thought the employee was not in the unit and left the name of another off because he was on temporary leave of absence and believed to be ineligible to vote, the Board held that these mistakes did not constitute gross negligence or indicate bad faith. West Coast Meat Packing Co., 195 NLRB 37 (1972). See also Women in Crisis Counseling, 312 NLRB 589 (1993), where a divided Board found the number of inaccuracies not to be substantial.
The Board takes more seriously the omission of names than inaccuracies in addressees. Women in Crisis Counseling, supra. See also Washington Fruit & Produce Co., 343 NLRB No. 125 (2004). This distinction is grounded in the fact that an employee’s name provides “a key piece of information which can be used to identify and communicate with the person by means other than mail.” Women in Crisis Counseling, supra at 589.
In
Note that even where the employer provides the union with
the only addresses it has, it will be found to have been grossly negligent in
supplying the list where it knew that many of its addresses were incorrect and,
as a result, had even ceased mailing W-2 forms to its employees. Merchants
Transfer Co., 330 NLRB 1165 (2000).
In Meadow Valley Contractors, 314 NLRB 217 (1994), the Board rejected an attempt to set a permissible omission vote of 9.5 percent. And in Fountainview Care Center, 323 NLRB 990 (1997), the Board concluded that an employer’s decision not to exclude the names of a little more than 5 percent of the unit was not a good-faith mistake and was therefore not in substantial compliance with the Excelsior rule. The Board further noted that evidence of bad faith or gross negligence is not a required element in finding a failure to comply with Excelsior but either can be a relevant consideration.
In one unusual case the Board found noncompliance with Excelsior when the employer provided the
union with a list that contained 81 names of ineligible voters in a unit of 146
employees.
In Nathan’s Famous of Yonkers, 186 NLRB 131 (1970), an exception was made because of an unusual factual situation: The exception was grounded on the employer’s flagrant unfair labor practices which were designed to defeat the winning union. There was no evidence that any union was prejudiced more than another by the withholding of the Excelsior list. It was therefore concluded that a literal application of the Excelsior rule would permit the employer to benefit from its illegal actions by providing it, with another opportunity to defeat the winning union. But, as the Board pointed out, this was an unusual situation. See also Thiele Industries, 325 NLRB 1122 (1998) (Board rejected employer objections based on its falure to provide Excelsior list).
Clearly, where the employer furnished a list which omitted the names and addresses of nearly half of the eligible voters, supplied a supplemental list itself deficient by the continued omission of the names and addresses of certain eligibles, and furnished it at a time when its use in the campaign was limited to only 6 days before the election, the election was invalidated. Blue Onion, 175 NLRB 9 (1969).
While the Board stated in Telonic Instruments, supra, that nothing in Excelsior would require a mechanical application of the rule, it stated later in Ponce Television Corp., 192 NLRB 115, 116 (1971), that it is not its policy “to vest the Employer with unlimited discretion with respect to the content of the eligibility list.” Thus, elections were set aside where the employer omitted the names of five eligible employees from the list, as a failure of substantial compliance (Sonfarrel, Inc., 188 NLRB 969 (1971)); where 22 percent of the electorate was omitted from the list (Ponce Television Corp., supra); where more than 11 percent of the eligible voters had been omitted (Gamble Robinson Co., supra); and where there had been a failure to supply addresses of employees in addition to names (British Auto Parts, 160 NLRB 239 (1966)). Compare LeMaster Steel Erectors, 271 NLRB 1391 (1984), where a deletion of 9 percent of the voters was held insufficient to set aside the election with Thrifty Auto Parts, supra, where 9.5 percent was considered sufficient. See also Mod Interiors, Inc., 324 NLRB 164 (1997), where the employer immediately corrected errors brought to its attention but the union did not have the fully corrected list for the full 10 days, and Bear Truss, Inc., 325 NLRB 1162 (1998), where the Board overruled objections finding that the employer acted in good faith in preparing and transmitting the list to the Region.
While the percentage of errors remains a factor in deciding Excelsior compliance matters, the Board in Woodman’s Food Markets, 332 NLRB 503, 504–505 (2000), specifically eschewed the percentage of error as the only factor to be considered:
We find that this approach—which focuses solely on the percentage of omissions relative to the number of employees in the unit—fails to adequately effectuate the purposes of the Excelsior rule. Accordingly, while we will continue to consider the percentage of omissions, we will consider other factors as well, including whether the number of omissions is determinative, i.e., whether it equals or exceeds the number of additional votes needed by the union to prevail in the election, and the employer’s explanation for the omissions.
. . . .
With respect to the employer’s explanation for the omissions, we note that omissions may occur, notwithstanding an employer’s reasonable good-faith efforts to comply, due to uncertainties about who is an eligible unit employee or other factors. Thus, we will consider the employer’s explanation for the omissions.
It follows that, where the employer submitted no list at
all, even though the union received only 8 out of the 215 ballots cast, the
election should be set aside since “to make the election results the
controlling factor in determining whether to excuse the lack of compliance with
the rule subverts one of its very purposes, viz, ‘to provide the Union [or
unions as the case may be] with the opportunity to inform the employees of its
position in order that the employees may intelligently exercise their right to
vote.”’ Fuchs Baking
The issues of a union’s actual access to employees, or the extent to which employees omitted from the Excelsior list are aware of the election issues and arguments, are not litigable matters in applying the Excelsior rule. Sonfarrel, Inc., supra. “To look beyond the question of substantial completeness of the lists,” said the Board in that case, “and into the further question of whether employees were actually ‘informed’ about the election issues despite their omission from the list, would spawn an administrative monstrosity.”
The Board has rejected the contention that the petitioner did not need the list and therefore was not entitled to a complete and correct one. Rite-Care Poultry Co., 185 NLRB 41 (1970). This was discussed in detail in Murphy Bonded Warehouse, 180 NLRB 463 (1970), in which the Board affirmed a hearing officer’s ruling at the initial representation case hearing, declining to permit an inquiry concerning the necessity of requiring submission of the list.
In invalidating the election in Rite-Care, the Board distinguished its rulings in Singer Co., 175 NLRB 211 (1969), and in Telonic Instruments, supra, in which it upheld the elections. In Singer, the list provided only surname and forename initials, and other inadvertent omissions but had correct addresses, and in Telonic the employer had inadvertently omitted four eligibles, but supplied them before the election.
Procedural note:
In NLRB v. Wyman-Gordon Co., 394 U.S.
759 (1969), the
After the Supreme Court’s decision in Wyman-Gordon, a case arose in which the employer argued that the parties by executing an election agreement waived an “adjudicatory proceeding” pursuant to which the Excelsior list may be validly directed. But the Board, rejecting this contention, explained that the election agreements expedite elections by obviating the need for formal hearings and directions of election. The parties’ waiver of these statutory requirements is itself statutorily permitted by Section 9(c)(4) of the Act and does not render inapplicable other statutory obligations and Board policies, “nor does it denude the representation proceeding of its adjudicatory nature.” Formfit Rogers Co. v. NLRB, 71 LRRM 2456 (D.C.Tenn. 1969). Thus, where an election agreement is involved, the procedure is essentially similar to that followed in NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969), except that the parties are able to stipulate to certain facts and execute an election agreement instead of pursuing the more formal route to a direction of election. As in Wyman-Gordon, the employer is specifically directed to furnish the Excelsior list. The fact that the direction is made by a Regional Director in a separate letter accompanying the copy of the agreement does not make the direction less valid. “To hold otherwise,” concluded the Board, “would be to invite unnecessary litigation in situations where the parties would otherwise stipulate to the relevant facts.” Bishop-Hansel Ford Sales, 180 NLRB 987 (1970).
See also section 23-510.
The Peerless Plywood rule, applicable to employers and unions alike, forbids election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for an election. Violation of this prohibition is a ground for setting aside the election whenever valid objections are filed. Peerless Plywood Co., 107 NLRB 427, 429 (1954).
“Such a speech,” said the Board in its rationale, “because of its timing, tends to create a mass psychology which overrides arguments made through other campaign media and gives an unfair advantage to the party, whether employer or union, who in this manner obtains the last most telling word.” The Board adverted to its longstanding rule prohibiting electioneering by either party at or near the polling place. “We have previously prescribed space limitations,” said the Board, “now we prescribe time limitations as well.”
The Peerless Plywood
rule was held inapplicable in the case of a casual solicitation of three
employees, only one of whom was eligible to vote, the night before the election
by a union agent. This, said the Board, cannot be characterized as a “speech”
to a “massed assembly of employees.” “That rule was not intended to nor, in our
opinion, does it prohibit every minor conversation between a few employees and
a union agent or supervisor for a 24-hour period before an election.” The
election was sustained. Business Aviation,
Inc., 202 NLRB 1025 (1973). See also Electro Wire Products, 242 NLRB 960
(1979), where the employer president
spoke individually to each employee on the day of the election asking them to
vote “no”; Associated Milk Producers,
237 NLRB 879 (1978), and Comcast Cablevision of New Haven, 325 NLRB 833 (1998) (brief remarks by union to a noncaptive
audience did not violate rule). Neither does distribution of propaganda with
paychecks immediately before the election fall within the prohibition of the
rule.
This rule does not interfere with the rights of unions and employers to circulate campaign literature on or off the premises at any time prior to an election (see General Electric Co., 161 NLRB 618 (1966), and Andel Jewelry Corp., 326 NLRB 507 (1998)), nor does it prohibit the use of any other legitimate campaign propaganda or media. It forbids speeches, whether coercive or not (see Excelsior Laundry Co., 186 NLRB 914 (1970)), during the prescribed 24-hour period on company time and property, but it does not “prohibit an employer from making (without granting the union an opportunity to reply) campaign speeches on company time prior to the 24-hour period, provided, of course, such speeches are not otherwise violative of Section 8(a)(1).” The Board added that the rule does not prohibit employers and unions from making campaign speeches on or off company premises during the 24-hour period “if employee attendance is voluntary and on the employees’ own time.” Peerless Plywood Co., supra at 430. See also Nebraska Consolidated Mills, 165 NLRB 639 (1967).
The rule can be violated by the use of sound trucks, broadcasting short messages or union songs to employees during a change in shifts. U.S. Gypsum Co., 115 NLRB 734 (1956). See also Purolite, 330 NLRB 37 (1999), overruling Bro-Tech Corp., 315 NLRB 1014 (1994), where the Board found that broadcast of union songs from a sound truck was not conduct proscribed by the Peerless rule.
The Peerless Plywood
rule is not limited to “a formal speech in the usual sense,” but is designed to
bar, for example, a question and answer session.
Where on the day before the election, company representatives addressed meetings of employees on all three shifts in the production areas of the plant during working time, and, although purportedly called for the purpose of advising employees that the election would not be postponed as told the employees in a prior letter, they nonetheless engaged in campaign speeches expressing opposition to the union, the Peerless Plywood rule was held violated. Mallory Capacitator Co., 167 NLRB 647 (1967). But it was not breached where a speech or discussion 3 hours before the election by union representatives started on the employees’ own time, was extemporaneous, was voluntarily attended with no member of management present, and at best ran over into company time for no more than approximately 5 minutes. Nebraska Consolidated Mills, supra.
A more unusual situation was presented where meetings were called on company time with 150 to 200 employees in attendance within 24 hours of the election and, although the meetings were antipetitioner in tenor, the petitioner won the election despite the meetings. The Board cited Showell Poultry Co., 105 NLRB 580 (1953), and applied the rationale of that case which was that the Board will not set aside an election because of employer interference where the only union involved wins the election, because to do so would permit the wrongdoer to profit by its illegal acts. To uphold the objection of the intervenor would not only not effectuate the purposes of the Peerless Plywood Co., 107 NLRB 427 (1954), rule but would invite “collusion in future cases” by suggesting “to any employer who favors one competing union whose chances in the election do not appear to be bright, deliberately to violate the Peerless Plywood rule in the assurance that the favored minority union can successfully file objections and be given a second opportunity to woo the voters.” Packerland Packing Co., 185 NLRB 653 (1970). See also Flat River Glass Co., 234 NLRB 1307 (1978).
A speech otherwise permissible by Peerless was found objectionable because the employees were required to attend without full compensation and without receiving their regular paychecks until after the meeting. Comet Electric, 314 NLRB 1215 (1994).
A prounion poster affixed to a tree not visible from the property site was found not to be a Peerless violation. American Medical Response, 339 NLRB 23 (2003). Similarly, a text message sent to drivers in their trucks was not found to violate the Peerless rule. Virginia Concrete Corp., 338 NLRB 1182 (2003).
Where an election is conducted by mail, the Regional
Director must give all parties 24 hours’ notice of the date when the ballots
are to be mailed. Employers and unions alike are prohibited from making
speeches on company time to massed assemblies from the time and date the
ballots are scheduled to be sent out by the Region until the time and date set
for their return. Oregon Washington
Telephone Co., 123 NLRB 339 (1959);, and
In Kalin Construction Co., 321 NLRB 649 (1996), a divided Board applied the 24-hour rule to prohibit any changes in the paycheck process during this period. In the view of the majority, a paycheck,
cannot be equated to an ordinary piece of campaign literature exempt from the Peerless Plywood rule. An employee’s paycheck is a singular document.
Accord: United Cerebral Palsy Assn. of
Generally, the Board applies the common law principles of Agency including principles of apparent and actual authority in determining responsibility for misconduct. Mar-Jam Supply Co., 337 NLRB 337 (2001); Cooper Industries, 328 NLRB 145 (1999); and Fieldcrest Cannon, Inc., 318 NLRB 470 (1995). See also Culinary Foods, Inc., 325 NLRB 664 (1998). See Cornell Forge Co., 339 NLRB 733 (2003), for a summary of agency law as it relates to unit employees as agents of the union.
Elections, however, are not only invalidated because of
the conduct of the parties and their agents but also because of third party
conduct which interferes with the right of employees to a free and uninhibited
choice in the selection of a bargaining representative to such extent that it
renders “a free election impossible.” Westwood
Horizons Hotel, 270 NLRB 802 (1984);
Note: For analyses of third electioneering viz, conduct at or around the polls, see The Milchem Rule 24-442, infra.
For a discussion of racially or ethnically derogatory remarks by third parties, see M & M Supermarket v. NLRB, 818 F.2d 1567 (11th Cir. 1987).
One of the earliest cases to establish this principle was P. D. Gwaltney, Jr. & Co., 74 NLRB 371 (1947). In that case, the Board enunciated fully its rationale. It pointed out that a representation proceeding is in effect an investigation to ascertain employee wishes concerning their choice of a bargaining representative. For this reason, in appraising the facts and determining the Board’s duty in this context, more is involved than the mere determination of whether or not the employer was responsible for the antiunion conduct which immediately preceded the election. Rather, the issue before the Board is whether the election was held in an atmosphere conducive to the kind of free and untrammeled choice contemplated by the Act. Cal-West Periodicals, 330 NLRB 599 (2000), citing Westwood Horizons Hotel, supra. See also Robert Orr–Sysco Food Services, 338 NLRB 614 (2002); Associated Rubber Co., 332 NLRB 1588 (2000). And as the Board stated in a later case: “The election was held in such a general atmosphere of confusion and fear of reprisal as to render impossible the rational, uncoerced selection of a bargaining representative. It is not material that the fear and disorder may have been created by individual employees and nonemployees and that their conduct cannot be attributed either to the Employer or to the unions. The important fact is that such conditions existed and that a free election was thereby rendered impossible.” Diamond State Poultry Co., 107 NLRB 3, 6 (1954). See also Rheem Mfg. Co., 309 NLRB 459 (1992), which overruled an objection based on one employee campaigning outside the polls distinguishing Pepsi-Cola Bottling Co., 291 NLRB 578 (1988). Lamar Advertising of Janesville, supra. Compare Q. B. Rebuilders, 312 NLRB 1141 (1993), where the Board found a sufficient level of fear to set aside the election based on a third party (employee) threat to call the INS to report any employee who voted against the union. For a discussion of third party conduct where the Board did not set the election aside because of alleged confusion rather than fear, see Phoenix Mechanical, 303 NLRB 888 (1991); Teamsters Local 299 (Overnite Transportation Co.), 328 NLRB 1231 fn. 1 (1999); Stannah Stairlifts, Inc., 325 NLRB 572 fn. 2 (1998); and Culinary Foods, Inc., supra.
The Second Circuit punctuated the principle here under consideration by pointing out that certain elements, regardless of their course, may make an impartial choice impossible thus invalidating an election. NLRB v. Staub Cleaners, 357 F.2d 1 (2d Cir. 1966).
“Realistically speaking, and in order to near if not arrive at the highly desired laboratory conditions for an election, this is the most workable approach. Parties to an election and their well wishers are thus put on notice that prohibited conduct engaged in by anyone may forfeit an election. This then will serve to put a premium on proper deportment by all parties.” Teamsters Local 980 (Landis Morgan), 177 NLRB 579, 584 (1969).
In Dean Industries, 162 NLRB 1078 (1967), the company was not held responsible for certain of the conduct alleged as unfair labor practices by reason of activities on the part of persons not in its employ or management whom it did not clothe with the apparent authority to act for it. At the minimum, the employer must have acquired knowledge of the activities for which it is sought to be charged and the circumstances must have been such as to place the employer under an obligation to disavow said activities (at 1093). Nonetheless, it was concluded that much of the antiunion activities engaged in by the townspeople—spelled out in some detail in the decision—rendered impossible the rational, uncoerced selection of a bargaining representative. See also James Lees & Sons, Co., 130 NLRB 290 (1961).
The dichotomy between responsibility on the part of a party as a necessary element in an unfair labor practice finding and third party conduct as a ground for invalidating an election, even if the activities of the third party cannot be attributed to an actual party, was considered in Louisburg Sportswear Co., 173 NLRB 678, 693 (1969). Even if the activities by the local citizenry were not attributed to the company, the election held in the face of conduct of outside persons required setting the election aside. Where, of course, responsibility on the part of a party is established, as in General Metal Products Co., 164 NLRB 64 (1967), the outside individuals having acted “on behalf and in the interest of the Respondent with the latter’s knowledge and approval,” no distinction exists between the finding in the complaint case and the result in the objections case. See also Colson Corp. v. NLRB, 347 F.2d 128, 137 (8th Cir. 1965).
Third party conduct becomes actionable not only as a basis
for objections filed by unions but also for those filed by employers where the
latter allege conduct rendering impossible a rational, uncoerced choice in a
Board election. For example: An election was conducted in the face of an often
violent and emotion-filled strike. Events occurring during the critical period
(between the filing of the petition and the election) included extensive
property destruction, anonymous telephone threats to eligible voters, the
report of a bomb threat and subsequent police investigation which compelled the
automobile dealership to close down on the Saturday preceding the election, and
apparently unruly conduct on the picket line which resulted in the stationing
of full-time police and a police car in front of the dealership. The Board
concluded that the election was held in an atmosphere of confusion, violence,
and threats of violence, such as might reasonably be expected to generate
anxiety and fear of reprisal, and to prevent an uncoerced choice. The Board added:
“It is not material that fear and disorder may have been created by individual
employees or nonemployees and that their conduct cannot probatively be
attributed either to the Employer or to the
“Third parties,” a survey of this category of cases shows, include members of the community (James Lees & Sons Co., 130 NLRB 290 (1961)); the mayor of the city (Kelsey-Hayes Co., 145 NLRB 1717 (1964)); citizens’ committees (Myrna Mills, 133 NLRB 767 (1961)); members of the police force (Great Atlantic & Pacific Tea Co., 120 NLRB 765 (1958)); employees or nonemployees (Cal-West Periodicals, supra; Associated Rubber Co., supra; Al Long, Inc., supra). Compare Culinary Foods, supra; Windsor House C & D, 309 NLRB 693 (1992); and Q. B. Rebuilders, supra; employees from neighboring plants (Diamond State Poultry Co., 107 NLRB 3 (1954)); banks (Kelsey-Hayes Co., supra); community leaders (Dean Industries, 162 NLRB 1078 (1967)); businessmen (Benson Veneer Co., 156 NLRB 781 (1966); editors (Universal Mfg. Corp., 156 NLRB 1459 (1966)); chief of police (Lifetime Door Co., 158 NLRB 13 (1966)); and industrial advisory committee (Proctor-Silex Corp., 159 NLRB 598 (1966)). For an interesting third party case involving a State government official and the issue of whether the voters were confused, see Columbia Tanning Corp., 238 NLRB 899 (1978). Compare Ursery Cos., 311 NLRB 399 (1993); Saint-Gobain Abrasives Inc., 337 NLRB 82 (2001), and Chipman Union, Inc., 316 NLRB 107 (1995) (letter from U.S. Congressman not objectionable). See also discussion of these issues at section 24-441.
The conduct of prounion employees who have no actual or apparent
authority to act for the union is evaluated under third party conduct standard.
The arrest of the union’s principal organizer in the presence of a number of eligible voters only minutes before they were scheduled to vote served as a meritorious objection to the election. Great Atlantic & Pacific Tea Co., 120 NLRB 765 (1958). But the mere presence of police during an election does not warrant its invalidation where it appeared that the police did not speak to any of the voters. Vita Food Products, 116 NLRB 1215, 1219 (1957).
While, as has been reiterated above, conduct not attributable to either party to an election may be grounds for setting the election aside, the Board has held that it “accords less weight to such conduct than to conduct of the parties.” Orleans Mfg. Co., 120 NLRB 630, 633 (1958); and Dunham’s Athleisure Corp., 315 NLRB 689 (1994). The explanation for this is that the Board believes that the conduct of third parties tends to have less effect upon the voters than similar conduct attributable to the employer who has, or the union which seeks, control over the employees’ working conditions. See Ottenbacher Mfg., 279 NLRB 1167 (1986).
In Bells Trans, 297 NLRB 280 (1989), the Board overruled objections based on a third party threat. In doing so, it distinguished both the nature of the threat and the frequency from those in Picoma Industries, 296 NLRB 498 (1989).
In Cross Baking Co.,
191 NLRB 27 (1971),
despite an employee’s conduct consisting of alleged “threats to and assault upon
members of the electorate” and alleged assaults, the Board found that this
conduct was too remote in time from the election, which was conducted 2 months
later, to warrant upsetting the election on the ground of atmosphere of fear.
The Board cited
To like effect, see Owens-Corning Fiberglas Corp., 179 NLRB 219, 223 (1969). While recognizing that some heated statements may be made by individual employees and that such conduct should be considered in determining whether employees were precluded from exercising a free choice, even absent employer or union responsibility, consideration should be given as to whether the conduct complained of was committed by the parties as distinguished from third persons, as conduct by the latter “tends to have less effect.” See also Lamar Advertising of Janesville, 340 NLRB No. 14 (2003).
In this connection, in Foremost Dairies of the South, 172 NLRB 1242 (1968), the Board, on remand from the Fifth Circuit (379 F.2d 241 (1967)), interpreted the court’s opinion “as dispensing with a showing of responsibility by one of the parties only where the conduct involved is of so serious a nature that it could only result in widespread confusion and fear of reprisal which would render impossible a rational, uncoerced choice by employees.” In Foremost Dairies, the Board found (at 1247) that the incidents which exceeded permissible bounds were merely three, “of which all were very limited in nature and only one was known to two other employees.” Compare Crown Coach Corp., 284 NLRB 1010 (1987), where threats of deportation by fellow employees warranted setting the election aside.
In Monroe Auto
Equipment Co., 186 NLRB 90 (1970), on remand from the Fifth
Circuit, the Board referred to Foremost
Dairies (379 F.2d 241 (1967)), and summarized “as the law of the case” the
frame of reference laid down by the court, as follows: (1) consideration of the
objections or incidents cumulatively rather than as isolated individual
incidents; (2) consideration, in addition to the objective evaluation normally
employed, of subjective evidence of fear and coercion in determining whether
interference sufficient to warrant setting aside the election occurred; and (3)
a determination not only whether the conduct complained of was coercive but
also whether it was so related to the election as to have a probable effect on
the employees’ actions at the polls or created an environment of tension so as
to preclude employees from exercising free choice. See NLRB v. Monroe Auto Equipment Co, 406 F.2d 177 (5th Cir. 1969); and Foremost Dairies of the Foremost
Dairies of the South v. NLRB, 416 F.2d 392 (5th Cir. 1969. Among the facts the Board
examines in analyzing threats not attributable to a party is the person making
the threats to carry them out. See
Spirited campaigning, “far from constituting unlawful interference with the Board’s election processes, may produce a more informed polarization of employee sentiment and therefore constitute a more accurate gauge of employees’ true representation desires.” Emerson Electric Co., 177 NLRB 75, 100 (1969). In that case, a plant unionization effort met with active opposition by other employees in the form of an “Emerson Royal Employees Club.” It was not ascribable to the employer, not found improper as such, and, in the circumstances, the employer was under no obligation to disavow it or any association with it.
In terms of the necessity for “disavowal,” the Board has
held that an employer is not necessarily under a duty to disavow a preelection
statement by an employee. American Molded
Products Co., 134 NLRB 1446, 1448 (1962); see also Northrop Aircraft, 106 NLRB 23, 25 (1953). In
like vein, the conduct of rank-and-file employees is not generally imputed to
their organization unless there is ratification. As a rule, it is considered in
the same way as conduct of a third party. But a union is held accountable for
statements of its committeemen when the latter are the responsible
representatives of the union in the plant and play a central role in the
election campaign. Vickers, Inc., 152
NLRB 793 (1965).
Compare Bio-Medical of
Third party conduct which is otherwise actionable, it should be made clear, may be neutralized by an employer’s specific public disavowal. For example: News stories and a statement by a development group which leased space to the employer had suggested that the firm might move if the union won the election. Nonetheless, “the Employer’s specific public disavowals of any intention to relocate, coupled with the Petitioner’s republication and distribution to employees of such disavowals, tended to neutralize any atmosphere of fear and confusion that otherwise might have been engendered” by third party (the development group) conduct. Electra Mfg. Co., 148 NLRB 494 (1964). See also Bristol Textile Co., 277 NLRB 1637 (1986).
Similar preelection activity was found not to have
interfered with the election in the light of the give-and-take of the campaign,
the employer’s disavowal of rumors about the plant’s closing, the absence of
any showing by the petitioner that it was dissatisfied with the disavowal, and
the employer’s “straight-forward assurance” to the employees that it had dealt
fairly with them, hoped to do better, and intended to keep the plant going
regardless of the outcome of the election. Claymore
Mfg. Co. of
On the subject of “rumor,” the Board, in General Housing Industries, 197 NLRB 24 (1972), found that in that case the rumors stood “revealed to the employees as nothing more than election propaganda,” and the various rumors neutralized and dissipated the possible coercive effect of the others. So, too, in Staub Cleaners, 171 NLRB 332, 333 (1968), the various statements by both the union and the respondent were sufficient to “neutralize and dissipate the rumor’s coercive edge.” The Board took into consideration the possibility that by repeating the rumor the respondent would spread it or misquote it, and thereby start a new rumor; it was therefore unnecessary for the respondent to risk quoting the rumor in order to deny it.
It is apparent, of course, that these cases we have been discussing turn on their particular facts, not on legal niceties. Thus, third party conduct not attributable to the petitioner, but actually attributed by the employees to former employees who had previously been discharged, could not possibly have had any coercive or disruptive effect on the election. ITT Consumer Services Corp., 202 NLRB 65 (1973).
See also Englewood Hospital, 318 NLRB 806 (1995), where a divided Board found unobjectionable an employer’s reference to and denunciation of an anonymous bigoted letter. The Board majority found that the employer’s conduct “did not rise to the level of a sustained appeal to racial prejudice of the type condemned in Sewell and its progeny.”
On occasion the Board will not be able to identify the persons engaging in misconduct. In those circumstances, the Board will not routinely set aside the election until there is final tally. The reason for this policy is that the Board does not wish to benefit the wrongdoers in circumstances where the election was not in their favor. See Pine Shores, Inc., 321 NLRB 1437 (1996).
See also 24-442. The Milchem Rule for discussion of party electioneering conduct as objectionable.
In 1973, the Supreme Court ruled that a union’s offer to
waive initiation fees can be grounds for setting aside an election. Such a
waiver is objectionable if it is limited to employees who sign a union
authorization card before the election. Where, however, the offer is not so
limited and is also available to those who sign up after the election, such an
offer would not be objectionable. NLRB v.
Savair Mfg. Co., 414
It is not objectionable conduct for a union to advise employees that if the union is voted in, they will continue to have an opportunity at the waiver or that employees who have paid initiation fees at other places of employment, do not have to pay again. De Jana Industries, 305 NLRB 294 (1991). Rather, Savair requires that objectionable conduct is that which requires an “outward manifestation of support” such as signing an authorization card or joining the union. Compare Nu Skin International, 307 NLRB 223 (1992), in which the Board found Savair inapplicable to the union’s distribution of t-shirts conditioned on signing of a prounion petition.
Where the union’s offer is ambiguous, the doubt will be
resolved against the union and the statement may be held objectionable. Smith & Co. of
Remarks of employee solicitors as to waiver may be
attributable to the union and thus become the basis for election objections.
When a union makes authorization cards available to employees as solicitors and
does not publicly disavow these solicitors as agents, the union will be deemed
to have authorized “a special agency relationship for the limited purpose of
card solicitation.”
In Hollingsworth Management Service, 342 NLRB No. 50, slip op. at 4 (2004), the Board repeated the “safe harbor” provisions for its Davlan policy:
[A] union may avoid responsibility for the improper
fee-waiver statements of its solicitors
. . . by clearly publicizing a lawful
fee-waiver policy in a manner reasonably calculated to reach unit employees
before they sign cards. Such publicity
may take any number of forms including, for example, an explanation of the
fee-waiver policy printed on the authorization card itself.” Davlan at 805.
In a somewhat related case, the Board concluded that a union’s promise of a card which would make employees eligible for referral from the hiring hall was not objectionable because there was no showing that the employees were not otherwise qualified to receive the referral card. Electrical Workers Local 103 (Drew Electric), 312 NLRB 591 (1993).
Efforts of supervisors on behalf of the union may be objectionable. In Harborside Healthcare, Inc., 343 NLRB No. 100, slip op. at 4 (2004), the Board stated its two part test for assessing objectionable conduct:
(1) Whether the supervisor’s prounion conduct reasonably tended to coerce or interfere with the employees’ exercise of free choice in the election.
This inquiry includes: (a) consideration of the nature and degree of supervisory authority possessed by those who engage in the prounion conduct; and (b) an examination of the nature, extent, and context of the conduct in question.
(2) Whether the conduct interfered with freedom of choice to the extent that it materially affected the outcome of the election, based on factors such as (a) the margin of victory in the election; (b) whether the conduct at issue was widespread or isolated; (c) the timing of the conduct; (d) the extent to which the conduct became known; and (e) the lingering effect of the conduct.
The alleged objectionable conduct by a supervisor in Harborside included prediction of job loss, advising employees that they had to attend union meetings, and soliciting employees to sign union authorization cards. In finding the solicitation objectionable, the Board noted the solicitation of a signature is more than speech. Rather it places employees in a situation where they could be reasonably concerned about giving the “right” or “wrong” response to their supervisors. Thus, the Board overruled Millsboro Nursing, 327 NLRB 879, 880 (1999), on this point.
The Board’s Harborside decision holds that the employer’s antiunion stance continues to be part of its test and may “mitigate the coercive effect of impermissible prounion supervisory conduct.”
The Board majority also noted that recent cases that
suggest that prounion supervisory conduct is not objectionable unless it
involves a threat or promise, “represent a departure from established
precedent.”
Absent proper justification, photographing or videotaping
employees as they engage in protected concerted activity violates Section
8(a)(1) of the Act. F. W. Woolworth
Co., 310 NLRB 1197, 1197 (1993); Saia Motor Freight Line, 333 NLRB 784,
785 (2001), and constitutes
objectionable conduct, Mercy General Hospital, 334 NLRB 100, 104–105
(2001). These rules apply not only
where a videotape is shot with a handheld camera, but also where the videotape
is created with a rotatable security camera purposefully directed at protected
concerted activity. See, e.g., Mercy
General Hospital, supra; U.S. Ecology Corp., 331 NLRB 223, 233
(2000). At the same time, however, the Board
“recognize[s] that an employer has the right to maintain security measures
necessary to the furtherance of legitimate business during the course of union
activity.” National Steel & Shipbuilding Co., 324 NLRB 499, 501
(1997), enfd. 156 F.3d 1268 (D.C.
Cir. 1998). Thus, it is neither unlawful nor objectionable when a rotatable
security camera, operating in its customary manner, happens to record protected
concerted activity on videotape.
In Saia Motor Freight Line, supra, the Board accepted an employer’s concern about traffic safety as a legitimate justification for photographing employees engaged in handbilling. But in Robert Orr-Sysco Food Services, 334 NLRB 977 (2001), the Board distinguished Saia finding no such justification.
In Randell Warehouse of Arizona, 328 NLRB 1034 (1999), the Board found that union videotaping of the distribution of literature to employees as they accepted or rejected the literature is not objectionable. In doing, so, a divided Board overruled Pepsi-Cola Bottling Co., 289 NLRB 736 (1988), and reaffirmed Mike Yurosek & Son, 292 NLRB 1074 (1989). Mike Yurosek was a case in which the photographing was accompanied by statements that “could reasonably put employees in fear that the pictures would be used for future reprisals.”
Randell Warehouse was decided by the Board after oral argument with a second case that was settled prior to decision. That second case dealt with the issue of employer videotaping. The Board’s Randell decision includes the views of the minority, and concurring Members on the majority holding that it would make a distinction between union and employer videotaping.
See also Nu Skin International, 307 NLRB 223 (1992), in which photographing employees attending the union’s picnic luncheon was not found to be objectionable.
In chronological order, having dealt with preelection campaign activities in their several aspects, we come now to the issues which arise as a result of conduct at the actual time of the election. As in the case of preelection conduct, so in conduct at or near the polls, full regard is accorded to the rights of eligible voters in the exercise of their franchise. As the Board put it in New York Telephone Co., 109 NLRB 788 790–791 (1954):
The Board is responsible for assuring properly conducted elections and its role in the conduct of elections must not be open to question. Where . . . the irregularity concerns an essential condition of an election, and such irregularity exposes to question a sufficient number of ballots to affect the outcome of the election, in the interest of maintaining our standards there appears no alternative but to set this election aside and to direct a new election.
This principle has been stated and restated in a countless number of cases and, in keeping with it, the Board tests the many types of procedural objections to an election which come before it. Elections may be set aside on procedural grounds or because of the conduct, deliberate or inadvertent, of the parties themselves or, as we have seen in the preceding chapter, even of third parties, of election observers or of others at the polls, or of Board agents if they fail to live up to the Agency’s high standards of impartiality and fairness. Accord: Sawyer Lumber Co., 326 NLRB 1331 (1998).
The Regional Director has broad discretion in making election arrangements, and in the absence of objective evidence that this discretion has been abused, the election is upheld. See, for example, Milham Products Co., 114 NLRB 1544, 1546 (1955); Independent Rice Mill, 111 NLRB 536 (1955). The Regional Director’s discretion in conducting an election includes, among others, the extension of voting time (Glauber Water Works, 112 NLRB 1462 (1955)); determining the date of the election (Comfort Slipper Corp., 112 NLRB 183 (1955)); the use of IBM voting cards as an additional means of identification of voters (New York Shipping Assn., 109 NLRB 310 (1954)).
Where the Regional Director’s investigation of timely filed objections uncovers a matter relating to the conduct of a Board agent or the functioning of Board processes sufficient to cause the election to be set aside, the Board will consider such matter even if not within the scope of those objections. Richard A. Glass Co., 120 NLRB 914 (1958).
Alert attention to the proprieties and regularity of a Board election, like charity, starts at home. We will therefore begin our analysis of conduct affecting the election by turning our attention to Board agent conduct.
The conduct of Board agents must be beyond reproach and
“must not tend to destroy confidence in the election process.” Athbro Precision Engineering Corp., 166
NLRB 966 (1967). For an extensive discussion of Board agent
conduct by a divided Board, see
Leaving an unsealed package of blank ballots unprotected during a period when access to the ballot box was possible is regarded as a serious irregularity on the part of the Board agent, even in the absence of evidence that any ballots had been removed or that improper voting had occurred, or that any person had attempted to put more than one ballot in the ballot box. Hook Drugs, 117 NLRB 846 (1957); Tidelands Marine Services, 116 NLRB 1222 (1956).
“We do not believe,” said the Board, “that we should speculate on whether something did or did not occur while the ballot box was left wholly unattended. The Board, through its entire history, has gone to great lengths to establish and maintain the highest standards possible to avoid any taint of the balloting process; and where a situation exists, which, from its very nature, casts a doubt or cloud over the integrity of the ballot box itself, the practice has been, without hesitation, to set aside the election.” Austill Waxed Paper Co., 169 NLRB 1109 (1968).
In Austill the ballot box became unattended when an altercation which developed during the voting period outside the polling place drew attending officials away. A later case, Anchor Coupling Co., 171 NLRB 1196 (1968), was distinguished from Austill to the significant extent that “the ballot box was not left wholly unattended” and both the employer’s observers—the employer was the one who filed objections to the election—certified that the ballot box was protected in the interest of a fair and secret election. See also General Electric Co., 119 NLRB 944 (1957), where it had been established that at no time did anyone other than a Board agent touch any blank ballots which, along with the ballot box, were in the polling area in full view of all the observers. As there was no possibility of impropriety the election was upheld.
In Ashland Chemical Co., 295 NLRB 1039 (1989, the Board overruled objections based on the Board agent opening the ballot box before the arrival of the observer. The Board found no evidence of a violation of the integrity of the ballot box. Queen Kapiolani Hotel, 316 NLRB 655 (1995).
A Board agent’s leaving the polling place to notify the employees that it was time to vote, if he carries the ballot box and blank ballots with him and does not let them out of his possession and is accompanied by observers, is no ground for invalidating the election. S. S. Kresge Co., 121 NLRB 374 (1958). Even removal of a ballot from the box to explain to observers how a valid ballot should be marked is not objectionable if secrecy has not been impaired and the ballot is returned to the ballot box. O. K. Van & Storage Co., 122 NLRB 795 (1958). But see Jakel, Inc., 293 NLRB 615 (1989), where a ballot was retrieved from the box in order to complete a challenge. The Board found the conduct affected the integrity of the election. Compare K. Van Bourgondien & Sons, 294 NLRB 268 (1989); and Rheem Mfg. Co., 309 NLRB 459 (1992) (ballots not determinative). See also Madera Enterprises, 309 NLRB 774 (1992).
There are no absolute guidelines, however, as clearly stated
in Polymers, Inc., 174 NLRB 282
(1969),
enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396
Election procedures prescribed by the General Counsel or a Regional Director are obviously intended to indicate to field personnel those safeguards of accuracy and security thought to be optimal in typical election situations. These desired practices may not always be met to the letter, sometimes through neglect, sometimes because of the exigencies of circumstance. The question which the Board must decide in each case in which there is a challenge to conduct of the election is whether the manner in which the election was conducted raises a reasonable doubt as to the fairness and validity of the election.
Thus, looking to the facts of each case, the Board will not set aside the election unless it finds a reasonable possibility of a breach in security. An objection relating to the integrity of the election process requires an assessment of whether the facts indicate that “a reasonable possibility of irregularity inhered” in the conduct of the election. Peoples Drug Stores, 202 NLRB 1145 (1973) (in which the Board examined the theoretical possibility as against the improbabilities of the factual circumstances); Indeck Energy Services, 316 NLRB 300 (1995); and Dunham’s Athleisure Corp., 315 NLRB 689 (1994). A simple mistake in the tally of ballots, later corrected, is not a basis for a new election. Allied Acoustics, 300 NLRB 1183 (1990).
The Board also pointed out in Polymers, Inc., supra, that, in a given case, even literal compliance with all of the rules, regulations, and guidelines would not satisfy the Board that the integrity of the election was not compromised. Conversely, the failure to achieve absolute compliance with these rules does not necessarily require that a new election be ordered, “although, of course, deviation from standards formulated by experts for the guidance of those conducting elections will be given appropriate weight in our determination.” In resolving issues based on allegations of security breach, the Board looks at all the facts and the inferences drawn from such facts. Thus, in Polymers, although the Board agent did not retain personal physical custody of the sealed ballot box and the blank ballots at all times, the facts indicated an “extreme improbability” of any violation of the ballot box. See also Benavent & Fournier, Inc., 208 NLRB 638 (1974), in which the Board declined to set aside the election even though the Board agent left the polling area for 5 minutes, leaving unmarked ballots and the unsealed ballot box with the observers. There was no evidence that anyone touched the ballots in his absence. See also Kirsch Drapery Hardware, 299 NLRB 363 (1990); Trico Products Corp., 238 NLRB 380 (1978); and Niagara Wires, 237 NLRB 1347 (1978).
Although the fact of the Board agent’s drinking beer with a union representative did not affect the votes of the employees, the Board nevertheless set the election aside to protect the integrity of its processes. Athbro Precision Engineering Corp, supra; principle enfd. 423 F.2d 571 (1970). Compare Newport News Shipbuilding Co., 239 NLRB 82, 87 (1978), where a Board agent allegedly accepted an observer’s request that he come to the agent’s room with liquor. As no employees were present, the Board did not set the election aside. The Board also noted that there were a large number of Board agents at this election and this was the only such incident. See also Rheem Mfg. Co., , supra, where the Board did not set the election aside when the Board agent walked through the plant with the union observer and Indeck Energy Services, supra.
The Board rejected as grounds for setting aside an election the fact that the Board agent at the election had appeared as one of two counsels for the General Counsel at an unfair labor practice proceeding held more than 2 weeks prior to the election, at a location substantially distant from employer’s plant, and where only rank-and-file employees were in attendance. Footnote 1 of the decision did note, however, that wherever feasible, in order to keep the conduct of elections completely separate from the investigation or trial of contemporaneous unfair labor practice charges involving the same parties, the Regional Director should designate as election agent someone other than one of the trial attorneys involved in the unfair labor practice case. Kimco Auto Products, 184 NLRB 599 (1970).
It was argued in another case that an election be set aside because of the Board agent’s conduct in investigating unfair labor practice charges against the employer between shifts of a split election. The Board declined to do so since only three employees were interviewed, all away from the employer’s premises, and there was no evidence that other employees witnessed the interviews or became aware of them. Amax Aluminum Extrusion Products, 172 NLRB 1401 (1968). See also McCarty-Holman Co., 114 NLRB 1554 (1955). The Board made the comment in Amax, however, that it would be “better practice for the board agent conducting an election to refrain from investigating unfair labor practices charges between shifts of the election.” In Sparta Health Care Center, 323 NLRB 526 (1997), the Board rejected the argument that there was any impropriety in the representation case hearing officer later serving as counsel for the General Counsel in an 8(a)(5) “test of certification” proceeding. See also S. Lichtenberg & Co., 296 NLRB 1302 (1989), where a newspaper article quoting a Board agent concerning a pending unfair labor practice complaint was not a basis for setting the election aside.
The Board has consistently held that a primary
consideration in the conduct of any election is whether the employees are given
adequate notice and sufficient opportunity to vote. Cities Service Oil Co., 87 NLRB 324 (1949);
The Board found no basis for setting aside the election in Foremost Dairies of the South, 172 NLRB 1242 (1968), stating that the presence of challenged voters waiting to cast a ballot cannot be equated with the unjustified presence of uninterested persons, even if one of them was a former supervisor, and that the presence of a former supervisor who is no longer on the employer’s payroll cannot be equated with the presence of a management representative. Compare Harry Lunstead Designs, 270 NLRB 1163 (1984), where the Board agent gave erroneous instructions as to the challenged ballot procedure and the Board set aside the election.
Where a Board agent permitted the union’s observer, without objection from the employer’s observer, to give the only Spanish-speaking employee direction on how to vote, in Spanish, but there was no evidence of electioneering, the election was upheld. Regency Hyatt House, 180 NLRB 489 (1969). But see Alco Iron & Metal Co., 269 NLRB 590 (1984).
Although it was impossible to determine whether an irregularity in the course of an election affected its outcome, the election was set aside where certain ballots were temporarily mislaid. This decision was based on the long-established principle that “the Board is responsible for assuring properly conducted elections, and its role in the conduct of elections must not be open to question” New York Telephone Co., , supra at 790. In this case, the employer contended that the premature closing, in the presence of employees waiting to vote, gave rise to rumors that the Board agent favored the employer and created an atmosphere of confusion, bias, and prejudice against the employer which affected votes cast in the afternoon session. Kerona Plastics Extrusion Co., 196 NLRB 1120 (1972). See also B & B Better Baked Foods, 208 NLRB 493 (1974).
A Board agent’s comment to other agents, “You’ve got yourself a winner,” made after all ballots had been cast, was no basis for invalidating the election. The Board considered the choice of language “unfortunate,” but interpreted it in context as indicating that, in the view of the Board agent, new colleagues were participating in an election presenting unusual complications, rather than as a prejudgment of challenged ballots yet to be resolved. Wald Sound, Inc., 203 NLRB 366 (1973). In a similar vein, the mere statement by a Board agent that the polls were open and the employees could, if they desired, “now vote for your union representative” was not a sufficient basis to set aside the election. Wabash Transformer Corp., 205 NLRB 148 (1973), enfd. 509 F.2d 647 (8th Cir. 1975). But in Renco Electronics, 330 NLRB 368 (1999), the Board found an unacceptable breach of neutrality when the Board interpreter asked an employee, “Do you know where to put your yes vote?”
In Sonoma Health Care Center, 342 NLRB No. 93 (2004), the Board agent, in response to a question from the union observer about the attitude of companies toward unions, said “Companies don’t like unions because they cannot fire or hire anyone and they cannot take benefits from the staff.” A divided Board found the statement “intemperate and inappropriate” but not a bases for setting aside the election.
A Board agent who periodically asked voters waiting in line to stop talking was not remiss because some unspecified conversations nevertheless took place. As stated by the administrative law judge and upheld by the Board, “There never has been a rule requiring absolute silence among voters waiting to vote.” Dumas Bros. Mfg. Co., 205 NLRB 919, 929 (1973). In Pacific Grain Products, 309 NLRB 690 (1992), the Board refused to set aside an election where management representatives walked into the polling area where it was not marked. Their entrance allegedly resulted in a verbal altercation between the Board agent and the managers.
Dismantling of the election booth before the agreed upon closing time was not found objectionable where no employee was disenfranchised. Sawyer Lumber Co., 326 NLRB 1331 (1998).
Premature disclosure of the Regional Director’s unit determination over a month before the election was not a basis for setting aside an election. Kleen Brite Laboratories, 292 NLRB 747 (1989).
The fact that Board agents are in a collective-bargaining
unit does not affect their neutrality.
See section 22-106 Concerning content of Notice of Election in cases where election is rescheduled for adminstrative reasons.
While in a real sense the mechanics of a Board election are inextricably tied in with Board agent conduct, it seems more logical to separate the two, to the extent possible, for the sake of clarity in the analysis of conduct-of-election issues.
Elections are generally on the employer’s premises in the absence of good cause shown to the contrary. If an election is held away from the employer’s premises, the initial suggestion of a place is normally made by the party proposing it, but final arrangements are made by the Board agent. The size of a polling place depends on the nature of the election, the number of voters, and the length of the voting period being pertinent factors.
The choice of a place for holding an election is within
the Regional Director’s discretion, and failure to consult with the parties in
this regard is not per se prejudicial. Korber
Hats, Inc., 122 NLRB 1000 (1959). Nor is the failure to post
signs designating the polling area. Sawyer Lumber Co., 326 NLRB 1331 (1998). Holding an election at the
employer’s place of business or near a place of management responsibility does
not require that the election be invalidated. Jat Transportation Corp., 131 NLRB 122 (1961); Cupples-Hesse Corp., 119 NLRB 1988 (1958). “Mere location of the
polling place behind a picket line is not of itself prejudicial to the fair
conduct of an election. . . . [without a showing] that the
In Robert F. Kennedy Medical Center, 336 NLRB 765 (2001), a divided panel overruled an objection to the election because one of two entries to the polling area became locked after the polling began.
See also section 24-525.
Where the opening of the polls is delayed and the number of employees possibly disenfranchised thereby is sufficient to affect the election, the election is set aside, whether or not those voters or any voters at all were actually disenfranchised. The test is an objective one. Pea Ridge Iron Ore Co., 335 NLRB 161 (2001). See also Jim Kraut Chevrolet, 240 NLRB 460 (1979), and Bonita Ribbon Mills, 87 NLRB 1115 (1949). Additional voting time provided on the day of the election does not in and of itself generally remedy the uncertainty caused by starting late. G.H.R. Foundry Division, 123 NLRB 1707 (1959). “Proper election procedure requires every reasonable precaution that a full opportunity to vote be given those eligible. That opportunity is best assured where the means of determining [opening and] closing time in the most accurate way available is included in the election arrangements made before the election occurs.” Repcal Brass Mfg. Co., 109 NLRB 4 (1954). For two cases in which late opening of polls which reached different results, see Jobbers Meat Packing Co., 252 NLRB 41 (1980); and Nyack Hospital, 238 NLRB 257 (1978) (election set aside). See also Midwest Canvas Corp., 326 NLRB 58 (1998).
In Rosewood Care Center, 315 NLRB 746 (1994), the Board refused to fault the Board agent for not making arrangements for late voters because the voters never showed up. An unscheduled mid-session closing of the polls warranted setting aside the election where the number of voters possibly disenfranchised could have affected the election results. Wolverine Dispatch, Inc., 321 NLRB 796 (1996).
An objection to an election was sustained where the Board
agent refused to permit two eligible voters to cast their ballots after the
polls had closed in view of the “special circumstances” of the case; i.e., a
brief 15-minute voting period and the facts that the Board agent was aware that
the two employees had tried to vote earlier and again sought to vote only
minutes after the polls had closed, the ballot box had not been opened nor the
tally of ballots yet started, and the addition of two valid ballots may have
affected the election results.
An objection that the voting began after the announced
time and that the polls were closed ahead of time was overruled when it
appeared that the polls were only 2 or 3 minutes late in opening due to a delay
in setting up the polling place, all eligible voters present cast ballots, and
there were no prospective voters waiting in line to cast ballots when the polls
were closed. Of the two eligible voters who did not vote, one was on leave of
absence and the other absent because of illness. Smith Co., 192 NLRB 1098, 1102 (1971).
See also
It is the Board agent’s responsibility to challenge the ballot of a late arriving voter in the absence of agreement of the parties that the individual can vote. See Laidlaw Transit, Inc., 327 NLRB 315 (1998).
An election is not set aside because a voting booth is dismantled before closing time unless it is shown that this conduct deprived any eligible voter of the opportunity to vote. O. K. Van & Storage Co., 122 NLRB 795 (1958). Accord: Sawyer Lumber Co., supra.
For related discussion, see section 24-425, infra.
A standard notice of election (form NLRB-707) is used to inform eligible voters of the balloting details. The notice contains a sample ballot with the names of the parties inserted, a description of the bargaining unit, the date, place, and hours of election, and a statement of employee rights under the Act. Other relevant details are inserted where necessary. In Penske Dedicated Logistics, 320 NLRB 373 (1995), the Board affirmed the election results where the notices were timely posted in a place where notices were customarily maintained even though the area was locked on Saturday and Sunday pursuant to the employer’s regular practice.
In 1987 the Board announced that henceforth the procedures for posting notices of election would be governed by a rule (Sec. 103.20 of the Rules). Under this rule the notice must be
(1) posted for 3 full working days in advance of the election.
(2) a party responsible for misposting is estopped from objecting to the nonposting.
(3) an employer is conclusively deemed to have
received the notices unless it notifies the Regional Office at least 5 full
working days before the election of its nonreceipt.
See Club Demonstration Services, 317 NLRB 349 (1995); and Ruan Transport Corp., 315 NLRB 592 (1994), holding that Saturdays, Sundays, and holidays are not working days within the meaning of the Rules. Compare Cleveland Indians Baseball Co., 333 NLRB 579 (2001), where the Board refused to set aside a stipulated election where no employees were scheduled to work during most of the posting period.
(4) failure to post the notices as required is ground for a new election when objections are filed.
See also Sugar Food, 298 NLRB 628 (1990), for a discussion of the rule and the policy with respect to defaced notices.
The rule is strictly enforced. Smith’s Food & Drug, 295 NLRB 983 (1989).
But in Madison Industries, 311 NLRB 865 (1993), the Board did not set aside an election where an amended notice was posted for a portion of the time. The Board found that the change in the notice (eligibility) did not affect the notice to employees of the election that is the purpose of the Rule. Neither was the election set aside in a two union election where the circumstances could “invite collusion” by any employer who might favor one of the competing unions. The employer’s failure to post in such circumstances would provide an unsuccessful favored union with a basis to set aside the election. Maple View Manor, Inc., 319 NLRB 85 (1995).
See section 24-441 for discussion of policy as to defaced notices and section 22-106 concerning contest of notice in cases where election is rescheduled for administrative reasons.
Each party is normally permitted to be represented at the polling place by an equal predesignated number of observers, usually employees of the employer who are not in the unit or in the voting group. Best Products Co., 269 NLRB 578 (1984). Compare Frontier Hotel v. NLRB, 625 F.2d 293 (9th Cir. 1980).
The use of observers at a directed election is a
privilege, not a right, and the presence of observers other than Board agents
is not required by the Act and may be waived. Best Products, supra. See Breman
Steel Co., 115 NLRB 247, 249 (1956); Simplot Fertilizer Co., 107 NLRB 1211 (1954). In a consent election,
however, the use of observers, if incorporated in the agreement, is a matter of
right since it is a material term of the “consent-election agreement,” and, if
this right is not waived, the election is subject to invalidation. Breman Steel Co., supra, and Asplundh Tree Export Co., 283 NLRB 1
(1987). See also, for example, Semi-Steel Casting Co. v. NLRB, 160 F.2d
388 (8th Cir. 1947), cert. denied 332
The standard procedure, as already indicated, is to allow
the parties to use employees as observers, it being unusual to use outside
observers. It is therefore no abuse of a Regional Director’s discretion to
decline the use of outside observers at some of several polling places. Jat
Transportation Corp., 131 NLRB 122 (1961), supra at 125–126. However,
in
In Embassy Suites Hotel, 313 NLRB 302 (1993), the Board affirmed that a nonemployee can be used as an observer absent evidence of prejudice to the interests of the other party or misconduct by the observer. In doing so, the Board stated that this policy applies even when the nonemployee is an ex-employee whose discharge is not being litigated distinguishing Correctional Health Care Solutions, 303 NLRB 835 (1991), where the Board held that ex-employees whose status is being litigated retain per se eligibility to act as observers.
And in Browning-Ferris Industries of California, 327 NLRB 704 (1999), the Board found objectionable a Board agent’s decision to conduct an election without union observers where the union proposed to use former employees as observers.
It is general Board policy, in the interest of free
elections, that persons closely identified with management may not act as
observers either for the employer, see, e.g., Sunward Materials, 304 NLRB 780 (1991); Mid-Continent Spring Co., 273 NLRB 884 (1985); Peabody Engineering Co., 95 NLRB 952, 953 (1951); Union Switch & Signal Co., 76 NLRB 205 (1948),
or the union. Family Services Agency,
The Board will not allow union officials to serve as observers in decertification proceedings. Butera Finer Foods, 334 NLRB 43 (2001). The Board had allowed union representatives to serve prior to Butera. See, e.g., E-Z Davies Chevrolet, 161 NLRB 1380 (1966) Carl Simpson Buick, 161 NLRB 1389 (1966), enfd. 395 F.2d 191 (9th Cir. 1968);; and Standby One Associates, 274 NLRB 952 (1985). The Board in Butera specifically declined to rule on whether it would allow union officials in nondecertification cases. See footnote 7. But see FleetBoston Pavilion, 333 NLRB 655 (2001), where the Board overruled an objection to the use of a union president as an observer, noting that he had worked for the employer, had been injured on the job, and was obtaining medical treatment that would allow him to return. The Board further noted that the observer was not involved in the referral of employees from the union’s hiring hall.
Holding an election without the observers of one party
present does not invalidate an election if both parties are given an equal and
adequate opportunity to have observers present. Manhattan Adhesives Corp., 123 NLRB 1096 (1959). See also Inland Waters Pollution Control, 306
NLRB 342 (1992), where the Board agent did
not allow late arriving observer to assume duties. Nor is an election set aside
if an employer denies an employee permission to leave work to serve as an
observer, where the employee had inadvertently made no arrangements for
release.
Objections to particular persons acting as observers must
be made at the preelection conference or they are waived. Liquid
Transporters, Inc., 336 NLRB 420 (2001), 276 NLRB 116 (1985); and
For cases dealing with the conduct of observers at an election, see Sir Francis Drake Hotel, 330 NLRB 638 (2000) (innocuous comments by observer, not objectionable); Compare Brinks, Inc., 331 NLRB 46 (2000); Tom Brown Drilling Co., 172 NLRB 1267 (1968); Hallandale Rehabilitation Center, 313 NLRB 835 (1994) (alleged to have kept a list and checked off the names of voters after they voted); and Fibre Leather Mfg. Corp., 167 NLRB 393 (1967) (role of observers in election involving foreign-language voters). In Brinks, Inc., supra, a divided Board found a union observer’s “vote union” comment and thumbs up sign to be improper electioneering. Compare U-Haul Co. of Nevada, 341 NLRB No. 26 (2004) (observer thumbs ups not linked to campaigning).
The conduct or circumstances surrounding the duties of an
observer may be a basis for election objections. In Easco Tools, 248 NLRB 700 (1980), the payment to observers of
a rate substantially in excess of their employment wage could have affected the
results of the election and the election was set aside. See also S & C Security, 271 NLRB 1300 (1984). Compare Young Men’s Christian Assn., 286 NLRB 1052 (1987). Note that Young Men’s was overruled in
The wearing of insignia or buttons by observers, while discouraged, is not prohibited. See CHM section 11310 and Larkwood Farms, 178 NLRB 226 (1969).
More recently, the Board affirmed the importance of the observer when it refused to overrule challenges to purported ballots of employees who later testified they had not voted. The Board discussed the role of observers and indicated that overruling the challenges would undermine the role of the observers. Monfort, Inc., 318 NLRB 209 (1995).
Observers may not keep lists of those voting, but may keep a list of those they intend to challenge. Cerock Wire & Cable Group, 273 NLRB 1041 (1984). See also Avante At Boca Raton, Inc., 323 NLRB 555 (1997). In Mead Southern Wood Products, 337 NLRB 497 (2003), the Board suggested that it is preferable that a duplicate Excelsior list not be used as a challenge list.
The duties of an observer include making challenges for cause. The Board agent will not normally make challenges on behalf of the parties even if no observer is present. CHM section 11338; and Solvent Services, 313 NLRB 645 (1994). Balfre Gear & Mfg. Co., 115 NLRB 19, 22 (1956). Compare Laubentein & Portz, Inc., 226 NLRB 804 (1976), where the Board agent was held responsible to challenge in order to implement an unfair labor practice settlement. See also H & L Distributing Co., 206 NLRB 169 fn. 1 (1973), suggesting that there may be other circumstances in which the Board agent could challenge at the request of a party. See also Lakewood Engineering & Mfg. Co., 341 NLRB No. 101 (2004), for a summary of Board agent’s challenge duties.
For further discussion of lists by observers, see section 24–445, and for discussion of challenges and postelection challenges, see sections 22–111 and 22–115, supra.
The Board regards it as its responsibility to establish the proper procedure for the conduct of its elections. This procedure requires that all eligible employees be given an opportunity to vote. Yerges Van Liners, 162 NLRB 1259, 1260 (1967); Alterman-Big Apple, Inc., 116 NLRB 1078 (1956).
Thus, where, as in Yerges, an employee had no opportunity to vote through no fault of his but because at the time of the election he was away from the plant in the normal course of his duties for the employer, and his vote would have been determinative of the results—the unit had only two eligible voters—the election was set aside. Accord: Acme Bus Corp., 316 NLRB 274 (1995). Compare Daniel Construction Co., 145 NLRB 1397, 1412 (1964), which involved the opportunity for voting on the part of individuals whose status as “employees” was in doubt. We have already mentioned Hanford Sentinel, 163 NLRB 1004 (1967), where voters were unable to vote under unusual circumstances and the election was set aside.
In Sahuaro Petroleum & Asphalt Co., 306 NLRB 586, 586–587 (1992), the Board summarized its policy:
Where the conduct of a party to the election causes an
employee to miss the opportunity to vote, the Board will find that to be
objectionable if the employee’s vote is determinative and the employee was
disenfranchised through no “fault” of his own. Versail Mfg., 212 NLRB 592, 593 (1974). When an employee is prevented
from voting by reason of sickness or some other unplanned occurrence beyond the
control of a party or the Board, the inability to vote is not a basis for
setting aside the election.
See also Glenn
McClendon Trucking, 255 NLRB 1304 (1981), and Cal Gas Redding, Inc., 241 NLRB 290 (1979), in which the election was
set aside because the eligible voters were prevented from voting because of
assignments performed in the normal course of their duties. Compare Cast
In one rather interesting case the actions of a third
party in inadvertently locking the doors of the polling area may have
contributed to some employees not voting. Accordingly, the election was set
aside. Whatcom Security Agency, 258
NLRB 985 (1981).
In Rett Electronics, 169 NLRB 1111 (1968), an objection alleged that (1) in view of weather conditions employees who tardily presented themselves to vote should have been allowed to cast a ballot, and (2) permitting a union observer to vote under challenge after other employees not closely identified with the petitioner were denied ballots prevented a fair election. The Board held (1) there was no disfranchisement of a determinative group of eligibles, only one of whom at best appeared after the closing of the polls, and (2) even assuming, arguendo, that the observer was permitted to cast “a challenged nondeterminative ballot” after the timely closing of the polls, this occurred concededly at a time when it would not have affected the free atmosphere of the election.
Employer conduct which confuses employees, and their confusion manifests itself in their spontaneous protests as soon as they learn that the election is over and they were denied an opportunity to vote, is a basis for setting an election aside. Wagner Electric Corp., 125 NLRB 834, 836 (1959). The confusion was created by the doors having been locked, the employees were told no one could go to the back room, and they were under the impression they would be told as to their voting opportunity.
In the case of a stipulation for a consent election, which provides for a manual election at a designated location, if no timely request is made for other arrangements, the late request may properly be rejected and a contention based on failure to provide an opportunity to vote may be found to be without merit. Franklin’s Stores Corp., 117 NLRB 793, 795–796 (1957); Red Owl Stores, 114 NLRB 176 (1955). See also Community Care Systems, 284 NLRB 1147 (1987), where the Board rejected an objection based on the failure to hold an election on a training date because the parties had stipulated to the date and no party objected before the election.
The requirement that employees be given an adequate opportunity to vote may not be waived by the parties to an election. Alterman-Big Apple, Inc., 116 NLRB 1078 (1956), supra; Active Sportswear Co., 104 NLRB 1057 (1953).
In Lemco Construction, 283 NLRB 459 (1987), the Board announced that it was abandoning any analysis which was “dependent on a numerical test to determine the validity of a representation election.” Thus, the Board overruled prior precedent which considered whether the number of voters actually voting in the election was a representative group. See also Community Care Systems, supra. Then, in Glass Depot, 318 NLRB 766 (1995), a Board plurality distinguished Lemco, supra, indicating that a different result might obtain if that lack of a representative complement was caused by an extraordinary event, e.g., severe weather.
Later, however, in Baker Victory Services, 331 NLRB 1068 (2000), the Board announced:
We conclude that the proper standard to be applied to the issue here is contained in V.I.P. Limousine [V.I.P. Limousine, 274 NLRB 641 (1985)], i.e., an election should be set aside where severe weather conditions on the day of the election reasonably denied eligible voters an adequate opportunity to vote and a determinative number did not vote. Accordingly, we reaffirm that standard today, and we reject the “representative complement” standard set forth in the plurality opinion in Glass Depot.
Although the number of voters voting in a Board election will not ordinarily affect the validity of a Board election, a union obtaining recognition by private means must be supported by a majority of the unit employees whether that support is shown by authorization cards or by a private election. Autodie International, Inc., 321 NLRB 688, 691 (1996) (recognititon unlawful where votes cast for labor organization were not a majority of the unit); Komatz Construction, Inc., v. NLRB, 458 F.2d 317, 322–323 (8th Cir. 1972) (unlawful recognition where union won majority of votes cast but not majority of total unit).
For discussion of late voters, see section 24‑422,
supra. See also 24-421 (The
Complete secrecy of the ballot is required by the Act and is observed in all Board-conducted elections. Conduct which tends to destroy or adversely affect such secrecy constitutes a ground for election invalidation. There must, of course, be reasonable doubt that the secrecy was affected. Bare assertions will not suffice. Avante At Boca Raton, Inc., 323 NLRB 555 (1997).
The Board’s duty to preserve the secrecy of the ballot is statutory and a matter of public concern, rather than a personal privilege subject to waiver by the individual voter. To give effect to such waivers would, as a practical matter, remove any protection of employees from pressures, originating with either employers or unions, to prove the way in which their ballots had been cast, and thereby detract from the laboratory conditions which the Board strives to maintain in representation elections. J. Brenner & Sons, Inc., 154 NLRB 656, 659 fn. 4 (1965). See also Space Mark, Inc., 325 NLRB 1140 (1998) (mail ballot completed by voter’s wife was properly voided).
The Board has characterized its role in the conduct of elections as one which “must not be open to question.” New York Telephone Co., 109 NLRB 788, 790 (1954). Thus, where, for example, improvised voting arrangements were in its opinion “entirely too open and too subject to observation to secure secrecy of the ballot,” it set aside the election. Imperial Reed Furniture Co., 118 NLRB 911, 913 (1957). Where, however, the voting booths were located at one end of a warehouse, and after voting some of the eligibles went to another part of the warehouse where they remained until the polls closed, the election was upheld. The Board noted the absence of electioneering or interference with voting. Choctaw Provision Co., 122 NLRB 474, 475 (1958); see also, for example, G. F. Lasater, 118 NLRB 802, 804 (1957). See also Sewell Plastics, 241 NLRB 887 (1979), where the Board analyzed allegations that observers could see voters voting in terms of the effect on the election, not secrecy of the ballot.
Circumstances may be such that a voter’s identity may
unavoidably become known. Thus, where a single professional employee
constitutes one voting group while all the other employees constitute a second
voting group, in a “Sonotone” (or
professional employees election), and the ballot in one group is different from
those of the other, the ballot of the single professional employee is, of
course, distinguishable but unavoidable. Triple
J Variety Drug Co., 168 NLRB 988, 989–990
(1967) (Hearing Officer’s Report on Objections and
Challenged Ballots). For similar reasons, where a ballot was challenged as
invalid in that, because of a tie vote, it lacked secrecy, the Board held that
the fact that “a voter’s identity may be publicly known as an unavoidable
result of the challenge procedure, does not invalidate his vote in the
determination of the election results.”
While secrecy of the ballot is of primary concern, the Board is also responsible for expediting questions concerning representation. In balancing these two goals, the Board has, in narrow circumstances, permitted challenged ballots to be opened and counted prior to a determination of voter eligibility. Ladies Garment Workers, 137 NLRB 1681 (1962). These circumstances are (1) the challenged ballots were cast by individuals who are alleged discriminatees in a pending unfair labor practice case; (2) the individuals have clearly waived their right to secrecy and requested that their ballots be opened; and (3) the circumstances are such that if some or all of the challenged ballots have been cast for the union, the union will receive a majority regardless of how the challenges are ultimately determined. See, e.g., Garrity Oil Co., 272 NLRB 158 (1984), and Premium Fine Coal, 262 NLRB 428 (1982). Compare El Fenix Corp., 234 NLRB 1212 (1978), in which the Board appears to suggest that all the determinative challenges must be the subject of the unfair labor practice case. See also United Insurance Co. of America, 325 NLRB 341 (1998), and JCL Zigor Corp., 274 NLRB 1477 (1985), and section 22–115 of this text.
A voter is not permitted to withdraw his ballot, once cast. Great Eastern Color Lithographic Corp., 131 NLRB 1139 (1961). Nor can the parties be allowed to do so. Thus, the Board rejected a stipulation by the parties that a challenged but comingled ballot be considered as cast for the petitioner. “Acceptance of such an agreement,” said the Board, “is not consistent with the Board’s purpose of preserving the secrecy of the ballot and providing sufficient safeguards to prevent possible abuses of the election processes.” T & G Mfg., 173 NLRB 1503, 1504 (1969). In that case, the ballot itself was not identifiable and the choice had been recorded in the tally of votes. There was no way of ascertaining how the vote was cast. The Board added: “We will not permit solicitation of such information from the voter, nor allow the parties to stipulate how a voter exercised his franchise, for this would create the very opportunity for collusion, coercion, and election abuse the Board is committed to prevent.”
In City Stationery, Inc., 340 NLRB No. 70 (2003), the Board rejected a contention that a settlement of unfair labor practice charges waived employees’ rights to have their ballots counted.
For a discussion of cases in which a ballot is returned from the ballot box, see section 24–410 of this chapter.
Where several voters enter an election booth at the same time, an election is susceptible to invalidation. Case Egg & Poultry Co., 293 NLRB 941 (1989). However, the Board agent may remedy the situation by destroying the ballots marked under such circumstances and allowing each employee to vote again, thus safeguarding the secrecy of the ballot. Deeco, Inc., 116 NLRB 990, 991 (1956). Moreover, “where . . . the impugned votes do not appear to be more than isolated instances and are not sufficient to affect the results of the election, the Board will not set the election aside.” Machinery Overhaul Co., 115 NLRB 1787, 1788 (1956).
Ballots which have been signed or marked so that the identity of the voter would or could be revealed are invalid. Such a situation occurred, for example, in Ebco Mfg. Co., 88 NLRB 983 (1950). In that case, the Board agent during the counting of ballots discovered a capital “R” with a circle drawn around it outside the voting boxes on the ballot. The Board held that distinguishing or identifying markings on ballots render such ballots void because to count such ballots “clearly would open the door to the exertion of influences such as to prevent the exercise of the voter’s free choice,” and would be inconsistent with the principle of a secret election. It is not necessary to establish the identity of the voter who cast the disputed ballot; it is sufficient that, upon an examination of the ballot, the markings in question appear to have been made deliberately, rather than accidentally or inadvertently, and that it may serve to reveal the identity of the voter. See also Eagle Iron Works, 117 NLRB 1053 (1957); Standard-Coosa-Thatcher Co., 115 NLRB 1790 (1956), which hold that it is the policy of the Board to invalidate a ballot if it contains marks identifying the voter. This rule is equally applicable to invalidate ballots which might give “rise to the possibility of revealing the identity of the voter” (Standard-Coosa-Thatcher Co., supra at 1792). “In the absence of evidence indicating that the ballot was deliberately marked for the purpose of identification, we will not disenfranchise a voter.” F. Strauss & Son, Inc., 195 NLRB 583 fn. 2 (1972). See Sorenson Lighted Controls, 286 NLRB 969 (1987), invalidating a ballot that was shown by the voter to another voter. In General Photo Products, 242 NLRB 1371 (1979), the voter who revealed his ballot could not vote again.
The question of the validity of a ballot, as distinguished from a challenge to the eligibility of the person casting the ballot, may properly be raised by a timely objection after the count and is not considered a postelection challenge. F. J. Stokes Corp., 117 NLRB 951, 954 (1957); Sorenson Lighted Controls, Inc., supra.
Voting in appropriate instances may be conducted by mail, in whole or in part. Mail balloting is used, if at all, generally in unusual circumstances, particularly where eligible voters are scattered because of their duties or where long distances are involved. The Regional Director has discretion to authorize balloting by mail when appropriate. Pacific Gas & Electric Co., 89 NLRB 938 (1950); and Southwestern Michigan Broadcasting Co., 94 NLRB 30 (1951). See Shepard Convention Services, 314 NLRB 689 (1994), finding an abuse of discretion in the failure to direct a mail ballot election. In mixed manual mail elections, mail ballots are only sent to those eligibles who cannot vote in person. They are not sent to employees who, although eligible to vote, are ill, on vacation, or members of the armed services. Nor are they sent to the in-temporary layoff status unless all parties agree, but a notice of election may nonetheless be sent to these employees. Enforcement was denied in Shepard by the D.C. Circuit, 85 F.3d 671 (D.C. Cir. 1996).
In a series of cases in 1997, the Board ruled on the
appropriateness of a mail ballot election in a series of circumstances. See
Thereafter, in San Diego Gas & Electric, 325 NLRB 1143 (1998), the Board announced the factors it expected its Regional Directors to consider in deciding whether or not to direct a mail ballot election:
1. Where eligible voters are “scattered” because of their job duties, over a wide geographic area;
2. Where eligible voters are “scattered” in the sense that their work schedules vary significantly so that they are not present at a common location and common times; and
3. Where there is a strike, a lockout or picketing in progress.
Since then the Board has reaffirmed the abuse of discretion standard under which it reviews decisions of Regional Directors to conduct mail, manual or mixed elections. See GPS Terminal Services, Inc., 326 NLRB 839 (1998); North American Plastics Corp., 326 NLRB 835 (1998); Masiongale Electrical-Mechanical, 326 NLRB 493 (1998); Nouveau Elevator Industries, 326 NLRB 470 (1998); and Diamond Walnut Growers, 326 NLRB 28 (1998).
The Board does not regard mail balloting as a “general course and method by which (its) functions are channeled and determined” within the meaning of Section 3(a)(2) of the Administrative Procedure Act. Consequently, a contention that an election was invalid because of the Board’s alleged noncompliance with that provision was rejected. F. W. Woolworth Co., 96 NLRB 380, 381–382 (1951).
Illustrative of circumstances susceptible to mail
balloting is where, because of the nature of their widespread over-the-road
driving duties, eligible voters had places of employment and residences which
were scattered throughout the
See Brink’s Armored Car, 278 NLRB 141 (1986), and Mission Industries, 283 NLRB 1027 (1987), in which the Board describes the precaution necessary in these cases. See also Club Demonstration Services, 317 NLRB 349 (1995), for discussion of the rule on election notice posting in a mail ballot election; Daves Newcomer Elevator Co., 315 NLRB 715 (1994), for discussion of the Regional Officer’s obligation to send duplicate election kits to employees who do not sign identification stub when returning mail ballots; and Watkins Construction Co., 332 NLRB 828 (2000), for a discussion of the policy on late arrival of mail ballots. In Sadler Bros. Trucking & Leasing Co., 225 NLRB 194 (1976), the Board ordered the Regional Director to accept a stipulation to waive the due date for two ballots. In J. C. Brock Corp., 318 NLRB 403 (1995), the Board rejected a contention that the use of foreign language ballots for some employees, destroyed the secrecy of the ballot. See Northwest Packing Co., 65 NLRB 890 (1946), for an interesting case involving allegations that the procedures affected the secrecy of the ballot. In that case the Board found that the ballots could not be opened with the proper protection for secrecy.
In Aesthetic Designs, LLC, 339 NLRB 395 (2003), a divided Board counted as valid a sample ballot that had been in the mail ballot election kit.
In Human Development Assn., 314 NLRB 821 (1994), the Board ordered the employer to pay the costs of a second election where the employer was found to have interfered with the voting process in a mail ballot election.
In Fessler & Bowman, Inc., 341 NLRB No. 122 (2004), the Board unanimously agreed that it is objectionable for a party to collect mail ballots for submission to the Board, but divided evenly over whether solicitation for collection is objectionable and over whether to set aside the election only if the collected ballots would be determinative.
See also section 22‑110, supra. For a discussion of mail ballot elections and Peerless Plywood, see section 24‑325 (b).
Due regard must be given in Board elections to the needs
of foreign language voters who are unable to read English. Where there is a
showing of need for a foreign language translation on the notice of election,
the Board will require such translation.
In Kraft, Inc., 273 NLRB 1484 (1985), the Board found that a ballot that attempted to indicate four languages was set up in such a way as to avoid confusion. Specifically, the Spanish and English translations which were typed seemed “lost or overshadowed” by the Vietnamese and Laotian translations. In the Board’s view this created “high potential for voter confusion” and the notices of election do not cure defective ballots. Compare Bridgeport Fittings, 288 NLRB 124 (1988), where a ballot in three languages was laid out in such a way as avoid confusion. Moreover, the Board noted that there were only three or four voters affected by a poor Laotian translation and the election was decided by a margin of 72 votes. The Board approved the use of English on the ballot listing the name of the union.
A party who is aware of a foreign language problem among the voters is required to put the Board on notice as to the problem. See Unibilt Industries, 278 NLRB 825 (1986), and the cases cited therein.
It is the responsibility of the Board agent to assure that the election is conducted fairly and impartially. In Alco Iron & Metal Co., 269 NLRB 590 (1984), the Board set aside an election because the Board agent virtually turned over to the union observer the running of the election as it related to Spanish-speaking voters. Compare Regency Hyatt House, 180 NLRB 489 (1969), which is discussed at footnote 2 of Alco, supra, and San Francisco Sausage Co., 291 NLRB 384 (1988).
Board policy permits the use of foreign language notices of election and English ballots. See CHM section 11315. This policy was approved by the Seventh Circuit in NLRB v. Precise Castings, 915 F.2d 1160 (7th Cir. 1990). The court did so, however, noting that there was no “evidence of actual confusion.” See Flo-Tronic Metal Mfg., 251 NLRB 1546 (1980), where the failure to include essential election information in the notice of election in Spanish was the basis for setting the election aside. In Avante At Boca Raton, Inc., 323 NLRB 555 (1997), the Board rejected a contention that the election should be set aside because the word “affiliated” was not translated for foreign language voters. The Board concluded that this did not affect voting decisions of the employees. See Superior Truss & Panel, Inc., 334 NLRB 916 (2001) (RD’s refusal to provide ballots in Spanish not objectionable; Spanish translation of notice understandable).
The Board agent conducting the election also conducts the ballot count. The determination of the Board agent can be challenged and in that case, the ballot is segregated in a challenge envelope and counted as a challenged ballot (CHM sec. 11340.7(a)).
In Aesthetic Designs, LLC, 339 NLRB 395 (2003), a divided Board counted as valid a sample ballot that had been provided in the mail ballot election kit.
In making the determination as to the ballot markings, the Board agent is to give effect to the unambiguous voter intent even though it may be an irregular marking or may be on the back of the ballot. Hydro Conduit Conduit Corp., 260 NLRB 1352 (1982). Accord: Wackenhut v. NLRB, 666 F.2d 464, 467 (11th Cir. 1982), and cases cited therein. Thus, for example, in Horton Automatics, 286 NLRB 1413 (1987), the Board found the proper voter intent to vote against the union when the voter wrote “non” across a ballot which was in both English and Spanish. See also Kaufman’s Bakery, 264 NLRB 225 (1982), where the Board disregarded irregular markings made over the original “X” and Columbia Textile Services, 293 NLRB 1034 fn. 4 (1989), where the voter had punched a hole through the “yes” box. See also Brooks Bros., Inc., 316 NLRB 176 (1995). In Bishop Mugavero Center, 322 NLRB 209 (1996), a divided Board found that a ballot marked with a single diagonal line in the “yes” box and “X” in the “no” box was a void ballot. Accord: TCI West, Inc., 322 NLRB 928 (1997). Compare Osram Sylvania, Inc., 325 NLRB 758 (1998), and Thiele Industries, 325 NLRB 1122 (1998).
In Daimler-Chrysler Corp., 338 NLRB 982 (2003), the full Board divided over a ballot marked by an X in the “yes” box that also contained a handwritten question mark (?) immediately adjacent to the “yes” square. There were no markings on the “no” box. The majority found that the markings evinced the voters’ intent to vote “yes” and that the question mark did not negate this expressed preference.
In Sunrise
Rehabilitation Hospital, 320 NLRB 212 (1995), a divided Board held that
monetary payments offered to employees as a reward for coming to a Board
election that exceed actual transportation expenses is objectionable. Accord: Lutheran Welfare Services, 321 NLRB 915
(1996); Perdue Farms, 320 NLRB 805 (1996); and Rite Aid Corp., 326 NLRB 924 (1998). Compare Good Shepard Home, 321 NLRB 426 1996), finding that the payments
amounted to actual expenses. Allen’s
Electric Co., 340 NLRB No. 119 (2003). See also
24-443 for discussion of the Board’s policy of barring raffles that are in any
way tied to voting in the election. Atlantic Limousine, 331 NLRB 1025
(2000).
The Board does not find payments for transportation or pay objectionable where the employees did not know of payments before voting. Indiana Hospital, Inc., 326 NLRB 1399 (1998), and J.R.T.S. Limited, Inc., 325 NLRB 970 (1998).
The Board considers itself responsible for assuring properly conducted elections, and where irregularities concern essential conditions of the election and expose to question a number of ballots sufficient to affect the outcome of the election, there is no alternative in light of the high election standards maintained by the Board but to set aside the election. The effectuation of this principle is a serious factor in many and varied types of procedural objections to elections with which the Board is confronted.
The specific types of issues relating to this principle
may either precede the date of the election or occur at or near the polls and
involve conduct affecting the results of the election. Although the Board has
traditionally declared its intention not to censor or police preelection
campaign propaganda by parties to elections, it must, in order to preserve an
atmosphere of impartiality, impose, certain limitations or methods on
campaigning. United Aircraft Corp.,
103 NLRB 102 (1953). See Pearson Education,
Inc., 336 NLRB 979 (2000). See Chrill
Care, Inc., 340 NLRB No. 123 (2003) (picketing
at site of election, not objectionable).
For a discussion of the Board’s policy with respect to
electioneering and the factors to be considered in determining whether specific
conduct is objectionable.
The reproduction of a document which purports to be a copy of the Board’s official secret ballot, but which in fact is altered for campaign purposes, tends to suggest to the voters, directly or indirectly, that this Agency endorses a particular choice. Allied Electric Products, 109 NLRB 1270 (1954).
After Allied Electric, the Board tended to follow a per se rule that an altered ballot or other Board material which tended to undermine the Board’s neutrality would cause the election to be set aside. In SDC Investment, 274 NLRB 556 (1985), the Board reexamined this policy in light of its decisions in Midland National Life Insurance Co., 263 NLRB 127 (1982), and Riveredge Hospital, 264 NLRB 1094 (1982), and found that the “crucial question” in resolving issues of sample ballot alteration is whether the document “is likely to have given voters the misleading impression that the Board favored one of the parties to the election.” 274 NLRB at 557. In two cases decided recently, the Board decided that the document involved clearly indicated that it was not a Government document. See Ursery Cos., 311 NLRB 399 (1993), involving a letter from a state representative, and Taylor Cadillac, 310 NLRB 639 (1993), involving a defaced sample ballot.
Thus, if the ballot or other material indicates that the source of the material is one of the parties, then the election will not be set aside. See Comcast Cablevision of New Haven, 325 NLRB 833 (1998); C. J. Krehbiel Co., 279 NLRB 855 (1986); Worths Stores Corp., 281 NLRB 1191 (1986); and Baptist Home for Senior Citizens, 290 NLRB 1059 (1988). The Board will examine extrinsic evidence to determine whether the document is misleading. See Baptist Home, supra at fn. 4, which implicitly overruled cases to the contrary, 3-Day Blinds, Inc., 299 NLRB 110 (1990).
In Archer Services, 298 NLRB 312 (1990), and 3-Day Blinds, supra, the Board found that the document was misleading and that there was no extrinsic evidence which indicated it was fromn a partisan source. Accordingly, the elections were set aside.
The Board has pointed out that the policy here is easily complied with by simply identifying on the document what its source is. 3-Day Blinds, Inc., supra; Professional Care Centers, 279 NLRB 814 (1986); and Rosewood Mfg. Co., 278 NLRB 722 (1986).
Note: In Brookville
Healthcare Center, 312 NLRB 594 (1993),
the Board announced that because it has included language in its Notices of
Election stating that there is no Board involvement in any defacement of
notice, the SDC Investment, 274 NLRB
556 (1985),
analysis is no longer required. Accord: Wells
Aluminum Corp., 319 NLRB 798 (1995), and Dakota Premium Foods,
335 NLRB 228 (2001). Brookville
Healthcare involved defacement of the official notice of election. Whichever the defacement is of a separate
sample ballot, so that the Brookville
Healthcare Center disclaimer is not readily available to the employees
receiving the defaced ballot, the Board will set the election aside.
See also section 24‑423, supra, for a discussion of the requirements for posting of the Notice of Election.
Adverting to the fact that, in prior decisions dealing with the effects of conversations between parties to the election and employees preparing to vote, no clear standard had been enunciated against which to measure such conduct, the Board established a rule prohibiting such conduct, “without inquiry into the nature of the conversations.” Milchem, Inc., 170 NLRB 362 (1968). In Rheem Mfg. Co., 309 NLRB 459 (1992), the Board reaffirmed the applicability of Milchem to parties only and not to third-party conduct. See also Lamar Advertising of Janesville, 340 NLRB No. 114 fn. 4 (2003); Yukon Mfg. Co., 310 NLRB 324 (1993); and Crestwood Convalescent Hospital, 316 NLRB 1057 (1995).
The Milchem rule applies only to conduct by a party to the election, not to employee conduct. Tyson Fresh Meats, Inc., 343 NLRB No. 129 (2004).
The facts in Milchem were simple. During the voting period, a union official stood for several minutes near the line of employees waiting to vote, engaging them in conversation. While the union official said that his remarks concerned the weather and like topics, the Board found that “the sustained conversation with prospective voters waiting to cast their ballots, regardless of the content of the remarks exchanged, constitutes conduct which, in itself, necessitates a second election.”
Applying the Milchem rule, an election was set aside where an individual, acting on behalf of the union, engaged in electioneering activities in close proximity to the polls during a substantial part of the voting period, notwithstanding the Board agent’s instructions, on three separate occasions, that he leave the area and the admonition that he could not electioneer within 50 feet of the polls. The Board viewed this conduct as “a serious breach” of its rule against electioneering at or near the polls. Star Expansion Industries Corp., 170 NLRB 364 (1968). Distinguishable were Sewanee Coal Operators’ Assn., 146 NLRB 1145 (1964), where, among other things, there was no specification by the Board agent of a “no electioneering” area, and Intertype Co., 164 NLRB 770 (1967), where the electioneering consisted of but one isolated remark to an employee at the end of the voting line.
Social pleasantries or chance remarks are not considered objectionable under the Milchem rule absent more. See Sawyer Lumber Co., 326 NLRB 1331 (1998), and Dubovsky & Sons, 324 NLRB 1071 (1997).
The Milchem rule was applied to a situation in which a supervisor went from person to person in the voting line, which varied from 15 to 50 employees, and engaged in conversational and handshaking activity. Volt Technical Corp., 176 NLRB 832 (1970).
In another case, where a single vote was determinative of the election and the conversations of petitioner’s observer, already criticized by the Board agent, “culminated in his gratuitious offer of a loan to a prospective voter”; the election was set aside. Modern Hard Chrome Service Co., 187 NLRB 82 (1970).
Milchem is
applicable to conversations between observers and voters. Where, however, the
conversation is initiated by the voter or amounts to no more than mere social
pleasantries, the Board has declined to set aside elections under Milchem, Modern Hard Chrome, supra. In Midway Hospital Medical Center,
330 NLRB 1420 (2000), a divided panel distinguished between remarks
directed at fellow voters, which are covered by the Milchem rule, and
those directed at Board agents, union, and management officials, which were not
considered covered by Milchem.
Thus, in Angelica
Healthcare Services, 280 NLRB 864 (1986),
enfd. sub nom. Clothing & Textile
Workers v. NLRB, 815 F.2d 225 (2d Cir. 1987), a voter initiated a
conversation with the union’s observer by asking him how he was and by
initiating further conversation on the subject of her recent surgery, when the
observer responded, “Fine, how are you?” In Oesterlen
Services for Youth, 243 NLRB 563 (1979), enfd. 649 F.2d 399 (6th Cir.
1981), cert. denied 454
In Hollingsworth Management Service, 342 NLRB No. 50 (2004), the Board found improper electioneering where employees were manhandled in front of the others by individuals who came to the polling area “for the apparent purpose of systematically targeting voters with last minute campaigning.”
Where during the balloting, two union representatives alternated in positioning themselves for conversation with voters at the foot of an outside stairway, 10 feet in length, leading to the second floor of a two-story building, and the polling area was in a conference room 20 to 25 feet down a hallway from the second floor entrance, the area outside this entrance was deemed beyond the “no electioneering” area established by the Board agent. The alleged conversations, the Board reasoned, did not take place with voters while the latter were in the polling area or in line waiting to vote, and therefore did not violate the Milchem rule. The establishment of a nonelectioneering area is left to the informed judgment of the Regional Director’s agents conducting the election since they are on the scene and familiar with the physical circumstances surrounding the location of the polls. Marvil International Security Service, 173 NLRB 1260 (1968). See also Faulhaber Co., 191 NLRB 326 (1971).
For similar reasons, the Milchem rule was not applied in the context of the following
factual situation: The election was conducted in a warehouse building, the
voting area being located about 30 feet from the entrance. Conversations
between three union representatives and several employees took place on a
parking lot outside the warehouse. The Board held that the Milchem rule does not apply to conversations with prospective
voters unless the voters are in the polling area or in line waiting to vote. U-Haul
Co. of
A single isolated violation Milchem, Inc., 170 NLRB 362 (1968), of Milchem
was held insufficient to set aside the election where the vote of the employee
addressed was not dispositive of the election. Mead Corp., 189 NLRB 190
(1971). Compare Bio-Medical of
It should also be noted that an election will not be set aside where the rule was violated by the observer for the losing party in the election. General Dynamics Corp., 181 NLRB 874 (1970).
In Pearson Education, Inc., 336 NLRB 979 (2001), the Board found that the posting of an antiunion poster near the polling site was objectionable. Accord: American Medical Response, supra.
For discussion of the third party conduct, see 24-326.
In Atlantic Limousine, 331 NLRB 1025 (2000), the Board adopted a new rule barring “employers and unions from conducting a raffle if (1) eligibility to participate in the raffle or win prizes is in any way tied to voting in the election or being at the election site on election day or (2) the raffle is conducted at any time during a period beginning 24 hours before the scheduled opening of the polls and ending with the closing of the polls.” Accord: Ryder Student Transportation Services, 332 NLRB 1590 (2000) (conditioning a raffle on a certain number of employees voting); Allenbrook Healthcare Center, 331 NLRB 1065 (2000) (raffle conducted during balloting).
The Board in Atlantic Limousine also concluded,
however, that election raffles held outside of the 24-hour period would be
scrutinized to determine whether “they involve promises or grants of benefit
that would improperly affect employee free choice; or whether they allow the employer
to identify employees who might or might not be sympathetic, and thus to
learn were to direct additional pressure or campaign efforts. Applying this
test, the Board set aside the election in BFI Waste Systems, 334 NLRB
934 (2001).
Gifts may not be given to employees as an inducement to secure employee support of a Board election. General Cable Corp., 170 NLRB 1682 (1968.
In B & D Plastics, 302 NLRB 245 (1991), the Board summarized its test for determining whether benefits or gifts amount to objectional conduct:
Gulf States Canners, 242 NLRB 1326 (1979). To determine whether granting the benefit would tend unlawfully to influence the outcome of the election, we examine a number of factors, including: (1) the size of the benefit conferred in relation to the stated purpose for granting it; (2) the number of employees receiving it; (3) how employees reasonably would view the purpose of the benefit; and (4) the timing of the benefit. In determining whether a grant of benefits is objectionable, the Board has drawn the inference that benefits granted during the critical period are coercive. It has, however, permitted the employer to rebut the inference by coming forward with an explanation, other than the pending election, for the timing of the grant of announcement of such benefits. See Speco Corp., 298 NLRB 439 fn. 2 (1990); United Airlines Services Corp., 290 NLRB 954 (1988); May Department Stores Co., 191 NLRB 928 (1971).
In B & D,
the Board found that the grant of a day off 2 days after the election was
objectionable. See also Shore & Ocean
Services, 307 NLRB 1051 (1992), in which the granting of two
benefits, a change in overtime computation and the providing of uniforms,
within a short time after learning the petition was filed was objectionable.
But see Emery Worldwide, 309 NLRB 185
(1992),
in which the outcome of a bonus competition was announced the day before the
election. The Board found that timing alone is insufficient to make an
otherwise unobjectionable announcement objectionable. Generally speaking, the
distribution of inexpensive pieces of campaign propaganda such as buttons,
stickers, or T-shirts is not objectionable. Compare R. L. White Co., 262 NLRB 575 (1982), and Nu Skin International, 307 NLRB 223 (1992) (T-shirts not objectionable), with Owens-Illinois, Inc., 271 NLRB 1235
(1984) (free jackets found objectionable). Similarly
announcement of a postelection victory party was not deemed objectionable.
In Comcast Cablevision-Taylor, 338 NLRB 1089 (2000), the Board set aside an
election after an adverse decision by the Sixth Circuit. The Circuit found that a union promise of a
trip to
Elimination of a benefit (access to bulletin board) during the election campaign was objectionable. Bon Marche, 308 NLRB 184, 185 fn. 7 (1992), and dissent . See also Chicagoland Television News, 328 NLRB 367 (1999); River Parish Maintenance, 325 NLRB 815 (1998); and Chicago Tribune, 326 NLRB 1057 (1998) (paying for attendance at party found objectionable).
In a series of cases, the Board has found that contests in
which a prize is awarded for answering questions about the election campaign
where employees are required to sign their names is objectionable. See Melampy Mfg. Co., 303 NLRB 845 (1991),
and cases cited therein. See also
The Board evaluates all the circumstances surrounding raffles that are held in connection with an election in deciding whether or not they are objectionable. These circumstances are described in Grove Valve & Regulator Co., 262 NLRB 285 (1982). See also Sony Corp of America, 313 NLRB 420 (1993), where the Board found that the value of the prize was not sufficiently high to be objectionable. See Bionetics Corp., 323 NLRB 639 (1997), for a discussion of late filed contention concerning an employer request that an employee distribute raffle tickets. See also Arizona Public Service Co., 325 NLRB 723 (1998), distinguishing B & D (payment cases) from Sony (raffles).
The wearing at the polls by observers of buttons or other insignia merely bearing the name of their union is not prejudicial to the fair conduct of an election. Electric Wheel Co., 120 NLRB 1644, 1646 (1958). And viewing the identity and special interests of employer observers as not reasonably presumed to be less well known than that of union observers, the Board holds that the impact on voters is not materially different “whether the observers wear prounion or antiunion insignia of this kind. (A hat with the words ‘Vote No.’)” Larkwood Farms, 178 NLRB 226 (1969), and Fiber Industries, 267 NLRB 840, 850 (1983).
Factual situations differ in many instances. In Mar-Jac Poultry Co., 123 NLRB 1571 (1959), the employer closed down its operations one-half hour before voting on election day, and some employees walked around the plant at such time wearing handmade paper hats lettered with words “Vote No.” An objection to the election on this ground was found to be without merit. In Delaware Mills, 123 NLRB 943 (1959), an employee, whose vote had been challenged, was required to sit at the polling place. She wore a coat, which was unbuttoned, revealing a T-shirt which bore the printed letters “TWUA,” and on her coat she wore a button with words “Vote Yes.” An objection primarily based on this behavior was overruled, the Board finding that her presence, “even if she in fact waved and smiled at the voters,” did not tend to so influence the voters as to warrant setting aside the election. In Sewanee Coal Operators’ Assn., 146 NLRB 1145 (1964), the Board held that the presence of a crowd or a massing of voters at the entrance to the polling place and placard electioneering by unidentified persons on behalf of a union in the area outside the polls, standing alone, did not impair the exercise of free choice in the election. The wearing of T-shirts by union observers, bearing the union name and emblem in such a manner as to be visible to the voters, and the congregating of persons in an area of the polls during the election wearing the same type shirts were raised by way of objection in R. H Osbrink Mfg. Co., 114 NLRB 940 (1955), but found without merit. The Board has consistently held that wearing stickers, buttons, and similar campaign insignia by participants as well as observers at an election is, without more, not prejudicial. See also Furniture City Upholstery Co., 115 NLRB 1433 (1956). See CHM section 11310.4 indicating that no insignia is preferred but not required of observers.
A significant distinction should be drawn between the situation involved in the above cases and one in which the employer makes badges or other campaign insignia available to employees.
Illustrative of the latter is Macklanburg-Duncan Co., 179 NLRB 848 (1969), where the employer not only
utilized its supervisory personnel in furtherance of its campaign by having them
wear buttons and T-shirts displaying proemployer and antiunion propaganda, but
intended via the supervisors to make the antiunion materials readily available
to employees who, by electing whether or not to wear them, would disclose their
respective choices. The Board found such tactics constituted unlawful
interference with the election. See also Garland
Knitting Mills, 170 NLRB 821 (1968), enfd. in material part 414 F.2d 1214
(D.C. Cir. 1969); Chas. V.
Weise Co., 133 NLRB 765 (1961).
Compare Black Dot, Inc., 239 NLRB 929
(1978),
in which the Board found the availability of such buttons was not objectionable
as long as supervisors were not involved in distribution. See also
As already indicated, Board policy prohibits the keeping
of a list, apart from the official voting list, of persons who have voted in
the election. International Stamping
For example, an observer for the employer, during the
morning voting session at one of the polling places, used a copy of the voting
list to determine whether the voters as they appeared to vote were among those
he had been instructed to challenge. Although he began by checking off voters
on his list, doing so only as to the first few voters, he discontinued such
practice when warned against it by the Board agent, nor was it clear that any
voter was aware his name was being checked off. The Board concluded that any
breach of the rule which may have occurred was de minimis and did not
constitute a basis for invalidating the election. Tom Brown Drilling
Lists of those to be challenged are of course permitted. See Cerock Wire & Cable Group, 273 NLRB 1041 (1984), and CHM section 11338.2, but the Board prefers that the observer not use a duplicate Excelsior list, Mead Southern Wood Products, 337 NLRB 497 (2002).
In two rather interesting cases, the Board did permit the employer to maintain lists where they were unrelated to the actual polling itself. American Nuclear Resources, 300 NLRB 567 (1990) (list maintained for security reasons); Red Lion, 301 NLRB 33 (1991) (list maintained for payroll reasons).
See also the discussion of Observers at section 24‑424, supra.
In Novotel New York, 321 NLRB 624 (1996), a divided Board found that in the circumstances there the union did not engage in objectionable conduct in filing a FLSA lawsuit prior to an election. In doing so the Board analyzed the case in light of the court’s two-part test of Nestle Dairy Systems, 311 NLRB 987 (1993), enf. denied 46 F.3d 578 (6th Cir. 1995). The elements of that test are:
(1) Whether the articles offered employees are
sufficiently valuable to have potential to
influence the vote.
(2) Whether the potential to influence votes is without relation to the merits of the election.
In Superior Truss & Panel, Inc., 334 NLRB 916
(2001), the Board overruled employer
objections to a union lawyer’s comment at a union meeting that the union would
file unfair labor practice charges after the election based on employee
concerns about supervisory harassment. In overruling the objection, the
Board noted that the “benefit” here was the filing of an unfair labor practice
charge. In doing so, the Board noted that its decision was consistent with the
rationale of the D.C. Circuit in Freund Baking, 165 F.3d 928 (D.C. Cir.
1999), which had distinguished filing charges from filing lawsuits.
In Lufkin Rule Co., 147 NLRB 341 (1964), at the request of the party whose objections to election conduct had been sustained, the Board directed its Regional Director to include in the notice of the repeat election the fact that a new election would be conducted because the employer’s preelection conduct had interfered with the employees’ exercise of a free and reasoned choice and thus warranted setting aside the original election. Fieldcrest Cannon, Inc., 327 NLRB 109 (1998).
The employer, in opposition to the union’s request, contended that to grant the motion would unduly prejudice it because such a statement, having the imprimatur of the Board, would suggest to the employees that in view of the employer’s misconduct the Board favored a vote for the petitioner in the second election. The Board rejected this contention, stating that it did “not believe that the notice in any way indicated that the Board favors the petitioner in the second election” and that the “primary purpose of the notice is to provide official notification to all eligible voters, without detailing the specific conduct involved, as to the reason why the elections were set aside.”
Prior to Lufkin Rule
Co., supra, Board had “seldom heretofore exercised its discretion to
incorporate in the election notice any language which might explain the basis
for the holding of a new election.” 29 NLRB Ann. Rep. 63 (1964). As a result of
The notice reads as follows:
The elections conducted on [insert date] were set aside
because the National Labor Relations Board found that certain conduct or the
Employer [
For an application to this rule, see, for example, Snap-On
Tools, Inc., 342 NLRB No. 2 (2004); Bush Hog,
Inc., 161 NLRB 1575 (1966). See also Monfort of Colorado, 298 NLRB 73 (1990); and SDC Investment, 274 NLRB 556 (1985). In Miller
Industries, 342 NLRB No. 112 fn. 4 (2004), the Board denied a request for a
special notice but did direct a notice of election in accordance with
If the
See 22-106, for discussion of Board policy of including statement of reasons for rescheduling elections in the Notice of Election.
Under certain circumstances, the Second Circuit has held that a postelection unit modification may affect the outcome of an election.
For a discussion of the cases, see section 3-880, supra.