Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, July 30, 2008

Conduct of Union Organizing Committee Not Attributed To Union

Nlrb_2 Foxwoods Resort Casino, 352 NLRB No. 92 (June 30, 2008), demonstrates an important principle of labor law. Not all conduct of employees can be attributed to their union. It is only where the employees act as agents for the union, that the union can be held responsible for their conduct. As the Board explained:

The Employer argues that Johnson was an agent of the Union under the doctrine of apparent authority. In Corner Furniture Discount Center, 339 NLRB 1122, 1122 (2003), the Board stated: Apparent authority results from a manifestation
by the principal to a third party that creates a reasonable
basis for the latter to believe the principal has
authorized the alleged agent to perform the acts in
question. Either the principal must intend to cause
the third person to believe the agent is authorized to
act for him, or the principal should realize that his
conduct is likely to create such a belief.
Employee members of an in-plant organizing committee
are not, per se, agents of the union. See Cornell
Forge Co., 339 NLRB 733 (2003); Advance Products
Corp., 304 NLRB 436 (1991). Indeed, the Board has
found activities such as distributing literature, soliciting
signatures on authorization cards, and talking to fellow
employees about the union insufficient to make employees
general agents of the union. The burden of proving agency is on the party asserting it. Millard Processing Services, 304 NLRB 770, 771 (1991), enfd. 2 F.3d 258 (8th Cir. 1993), cert. denied 510 U.S. 1092 (1994). Here, assuming arguendo that John
son engaged in objectionable list keeping, the Employer
failed to prove that her conduct was attributable to the
The employee organizing committee was a group of
about 105 employees who spoke to coworkers about the
Union, distributed literature, and met with union representatives to discuss working conditions and issues and
to help identify coworkers who might be prounion. Any
employee who wanted to call herself a member of the
committee could do so.
The evidence does not show that the committee members
were the Union’s primary conduits of communication
to employees or that union representatives were generally
absent from the campaign. See, e.g., Corner Furniture,
supra at 1123 (noting that the employee in question
was not the union’s only conduit to employees; emphasizing
the active role played by the union’s paid representative).
Rather, the Union maintained a substantial presence throughout the campaign, beginning the campaign
with a staff of 10 to 15 organizers and increasing
that number to about 50 by the week of the election.

Mitchell H. Rubinstein

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This issue, among others, surely will be examined during any labor law reform debate.

Posted by: JR | Aug 1, 2008 4:34:17 AM

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