Sunday, July 29, 2007
As most students of labor law know, NLRB elections are suppose to be conduct under laboratory conditions. If there is any undue influence or election conduct, the experiment is held again. This is known as the General Shoe doctrine. One of the most troublesome type of case in recent years concerns how to treat pro-union conduct of supervisors. In Madison Square Garden, 350 NLRB No. 8 (June 28, 2007), a divided Board reaffirmed its Harborside standard. The Board described this standard as follows:
The Harborside Board took the opportunity of the remand to rearticulate Board law and formulated a two step inquiry to apply in cases involving objections to an election based on pro-union supervisory conduct.
1) Whether the supervisor’s pro-union 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 pro-union 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 Id. at 909.
While largely reaffirming established Board precedent, in examining the nature, extent, and context of the supervisors’ conduct under the first prong of the Harborside standard, the Board held with respect to the supervisory solicitation of authorization cards that “absent mitigating circumstances” such solicitations have “an inherent tendency to interfere with the employee’s freedom to choose to sign a card or not” and thus “may be objectionable.” Id. at 911. In so holding, the Board reversed its prior law concerning supervisory solicitations of authorization cards.
Thus, the Board majority had little difficulty in overturning the election because supervisors handed out authorization cards and made several statements in support of the union. The sole Democrat on panel, Member Wilma Liebman would have allowed the union victory to stand because the supervisors did not engage in any type of threatening behavior.
Once again, a NLRB decision is divided along party lines.
Mitchell H. Rubinstein