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: