Election Propaganda. Failure to meet the standard: set aside election results and order a new election

Transcription

1 Election Propaganda NLRA Section 8(a)(1): It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 NLRA Section 8(a)(3): ULP for an employer by discrimination in regard to hire or tenure of employment to encourage or discourage membership in any labor organization

2 Election Propaganda NLRA Section 8(c): 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 subchapter, if such expression contains no threat of reprisal or force or promise of benefit.

3 Election Propaganda The General Shoe laboratory conditions standard: 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 o Election conduct may be an unfair labor practice and/or objectionable conduct Failure to meet the standard: set aside election results and order a new election

4 Election Propaganda Threats Of Reprisal NLRB v. Gissel Packing Co. (U.S. 1969) The employer s statements Court: balance (1) employer s rights against (2) employee rights protected by Sections 7 and 8(a)(1) and the proviso to Section 8(c) must take into account the economic dependence of the employees on their employers and the tendency of employees to pick up intended implications of the employer

5 Gissel (cont.) An employer is free to communicate its general views about unionism or specific views about a particular union so long as the communications do not contain a threat of reprisal or force or promise of benefit. An employer may make predictions regarding the precise effects he believes unionization will have on his company o Note: the prediction [1] must be carefully phrased [2] on the basis of objective fact [3] to convey an employer s belief as to demonstrably probable consequences beyond his control or [4] to convey a management decision already arrived at to close the plant in case of unionization

6 Gissel (cont.) Court: the employer s statements and communications threatened retaliatory action What did the speaker intend and the listener understand?

7 Election Propaganda Factual Misrepresentations Midland National Life Insurance Co. (N.L.R.B. 1982) The employer s misrepresentations Board rulings on the regulation of campaign propaganda o Early rulings refusing to consider the truth or falsity of campaign propaganda o Gummed Products Co. (1955): election set aside because of employer s deliberate misrepresentations o Hollywood Ceramics Co. (1962): election can be set aside o Shopping Kart Food Market (1977): overruling Hollywood Ceramics o General Knit of California (1978): misrepresentation can result in setting aside an election

8 Midland National (cont.) Rule: the Board will not probe into the truth or falsity of the parties campaign statements and will not set aside elections on the basis of misleading campaign statements The Board will intervene when a party uses forged documents which render the voters unable to recognize propaganda for what it is

9 Election Propaganda Inflammatory Appeals Sewell Mfg. Co. (N.L.R.B. 1962) Statements with racial overtones are appropriate if they are temperate in tone, germane, and correct factually o Burden of proving that the message is truthful and germane is on the party making the statement A reasoned decision by the employees was an impossibility First Amendment implications?

10 Polling Employees Operating Engineers Local 49 (Struksnes Construction Co.) (D.C. Cir. 1965, remanded to N.L.R.B.) Appeals court: Board must develop minimum standards governing employer ascertainment of union status and employees desires

11 Struksnes (cont.) Board on remand: employer polling of employees will violate Section 8(a)(1) unless o (1) Poll s purpose is to determine truth of union s claim of majority o (2) That purpose is communicated to employees o (3) Assurances of no reprisal are given o (4) Employees are polled by secret ballot o (5) No employer ULPs or coercive atmosphere Note: a poll taken while a Board election petition is pending is unlawful

12 Interference, Restraint Or Coercion NLRB v. Exchange Parts Co. (U.S. 1964) Employer s new benefits system Court: an employer is not free to violate Sec. 8(a)(1) by conferring benefits simply because it refrains from other, more obvious violations. The fist inside the velvet glove. Remedy?

13 Union Misconduct NLRA Section 8(b)(1)(A): ULP for a union to restrain or coerce employees in the exercise of the rights guaranteed in Section 7 NLRB v. Savair Mfg. Co. (U.S. 1973): union waiver of initiation fees for employees who sign a union recognition slip prior to an election is unlawful

14 Company Domination Or Assistance NLRA Section 8(a)(2):ULP for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it NLRA Section 2(5): labor organization means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

15 Company Domination Or Assistance Electromation, Inc. (N.L.R.B. 1992) The Action Committees; the Teamster s recognition demand The meaning of dealing with in Section 2(5) o Board: a bilateral mechanism involving proposals on subjects listed in Sec. 2(5) and management consideration thereof o Unilateral mechanism does not constitute dealing with o An organization performing managerial or adjudicative functions is not a Sec. 2(5) labor organization

16 Electromation (cont.) See footnote 24: antiunion motive is not critical Application: Action Committees are 2(5) labor organizations; the employer s conduct constituted unlawful domination and unlawful support

17 Company Domination Or Assistance ILGW v. NLRB (U.S. 1961) o NLRA Sec. 9(a): a union is the exclusive bargaining representative once it is designated or selected by the majority of employees in an appropriate bargaining unit The employer recognized the union as the exclusive representative; no effort was made to ascertain the union s majority status Court: the employer s recognition of a minority union violated Sections 8(a)(1) and 8(a)(2)