The very real questions about the NLRB’s decision-making authority may have finally slowed the agency down.  We have come to expect over the last few years, a relentless expansion of NLRB authority and reach, especially given the December timeframe when all sorts of surprises seem to come out of the agency.  So, it is somewhat noteworthy when the NLRB issues decisions that seem to fall squarely into existing precedent; it is even more noteworthy when one could easily envision the opposite result.

The Board recently issued two decisions involving objections made to representation elections.  In the first, a union victory was overturned after a non-employee was found to have acted as an agent on behalf of the union.  The second involved some objections that, although meritorious, could not have affected the outcome of an election that was decided by a wide margin of votes; there, the election results were not disturbed by the NLRB.

Union Election Win Reversed Due To Threats Made By Former Employee Found To Be Agent Of Union

Bellagio, LLC, 359 NLRB No. 128 (May 31, 2013), involved a situation where a casino employer and union were actively engaged in a campaign heading towards a secret ballot election.  During the course of the campaign, a former employee of the employer offered to assist the union in its efforts to win the election.  The union declined the assistance.

The union hosted an organizing meeting at its hall to discuss the campaign.  Current employee-voters showed up.  Despite the union’s rejection of his offer to help, the former employee also attended.  Although the union representative noticed the former employee was at the meeting, he did not ask him to leave nor did he otherwise say anything about the former employee’s presence.

An employee voter later expressed his interest in voting for the company, and identified employees who were pro-union.  After the voter made his intentions clear, he received a text from the former employee that said, in part, “I never pegged u for a rat” and which expressed displeasure for the pro-company employee’s vocal nature.  The two then had a telephone conversation where the former employee stated, “Bro, you know, if this vote goes through, you’re toast.”

The union won the election.  The threat made by the former employee was reported and the employer filed objections.  The hearing officer overruled the objection on the grounds that the former employee’s threats could not be attributed to the union because he was not an “agent” of the labor organization.

The Board reversed, noting what has been the law for many years:

The Board applies common law principles when considering whether an individual is an agent of the union. ‘Apparent authority results from the manifestation by the principal to a third party that creates a reasonable basis for the latter to believe that the principal has authorized the agent to perform the acts in question.’  Great American Products, 312 NLRB 962, 963 (1993).  ‘[E]ither the principal must intend to cause the third party to believe that the agent is authorized to act for him, or the principal should realize that this conduct is likely to create such a belief.’  Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82, 83 (1988)

The Board applied these principles and found that there was enough evidence to establish the former employee acted with apparent authority on behalf of the union, making the threat he issued attributable to the the union.  The Board considered the fact the former employee had approached the union asking to help and had attended a union meeting.  The union representative “should have realized that without” clarifying why the former employee was in attendance that employees would assume he was “working on behalf of the Union in this organizing effort.”  The Board then overturned the election and ordered a new one.

The principles of agency cited by the Board have been the law for many years.  What makes this case noteworthy is that it is extremely rare to find a person not employed directly by the union to be an agent.  There are countless examples of people who belong to “union affiliated” groups who picket, handbill, boycott and take other action on behalf of a union’s cause, all with some manifestation of acceptance by the union, whose conduct escapes punishment under the Act because the NLRB deems them not to be an agents of the union.

Threats Made During Election Not Pervasive Enough To Warrant New Election

In Sanitation Salvage Corp., 359 NLRB No. 130 (June 5, 2013), the employer faced an election campaign by two competing unions, the original petitioner and an intervenor.  During the course of the campaign a representative of the employer made threat s to reduce overtime opportunities if the petitioner won the election.  The threats were made directly to two employees.  The election was held and the intervenor won with 32 votes to petitioner’s 1o votes.  Petitioner filed objections over the threats.

The hearing officer ruled that the election should be overturned.  The Board rejected this ruling and confirmed the intervenor as representative of the employees.  In doing so the Board noted that it “will set aside an election when ‘the objectionable conduct so interfered with the necessary ‘laboratory conditions’ as to prevent the employee’s expression of a free choice in the election.”  Dairlyland USA Corp, 347 NLRB 310, 313 (2006).  The Board, noted, that there “is no evidence” that the threats were “disseminated beyond the two employees directly affected by it.”  The Board then stated that given the wide margin of victory for the intervenor, it could not find that the threats would have altered the outcome:

The Board has declined to set aside election results in cases in which the disparity between the vote margin and the number of employees affected by the objectionable conduct was similar to the disparity in this case.  For example, in Werthan Packaging, 345 NLRB 343 (2005), the Board found that a supervisor interrogated three employees, threatened a fourth employee and arguably interrogated a fifth employee.  Id. at 344.  Noting that the union lost the election by 21 votes while the objectionable conduct affected at most five employees, the Board found that a new election was not warranted.

Again, these legal principles are not new.  The application, however, is not exactly consistent.  One need not search very far to to find an NLRB case where the alleged objectionable conduct cannot be proven to have affected a single person in the voting unit, yet the Board reversed the election win for an employer.

Whether these cases represent some sort of trend or pattern is impossible to know.  Only time will tell.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.