By Lisa Milam-Perez, J.D. While an NLRB-conducted election was "imperfect," allegations of irregularities during the vote and of intimidating conduct by union supporters in the lead-up to the election did not, taken as a whole, cast a reasonable doubt as to the validity of a 55-49 win by the Teamsters, the Fifth Circuit found. Notwithstanding "unprofessional behavior" by the union election observer and four vandalized vehicles, the appeals court denied the employer’s petition for review and granted the Board’s cross-application for enforcement (Con-Way Freight, Inc. v. NLRB, August 31, 2016, Clement, E.). Challenging the union’s election win among the 100-plus drivers and dockworkers at its Laredo, Texas, facility, Con-way Freight petitioned the Fifth Circuit for review of an NLRB order certifying the union and finding the employer unlawfully refused to bargain. Hoping to set aside the election results, the company raised numerous arguments on appeal, none of which won the day. Voting booth set-up. The employer contended the Board agent compromised the integrity of the election because he failed to use a proper voting booth and to correctly assemble the cardboard shield in the "Poll Master II," a three-sided cubicle meant to ensure voter privacy. Instead of placing the "poll master" base on height-adjustable legs, the Board agent placed the cubicles on a table in the polling place, which was adjacent to the employee breakroom—from which employees could see the front of the booth, and the upper torso and arms of their coworkers while voting. But "prying eyes" could not see what the voter was actually doing in the booth and so did not likely intimidate voters or cause them to change their vote. "Observers were simply not able to see how voters filled out their ballots," the appeals court concluded. Employees not union agents. The court also rejected the employer’s plea that pro-union employees who campaigned for the union comprised an in-house "union committee" and, as such, were agents of the Teamsters and had engaged in objectionable electioneering. While the employees were clearly union advocates, handing out membership cards to their coworkers, the hearing officer properly found they simply were peers, working concertedly in their common interest. "In any union election, it is very likely that pro-union employees will make concerted efforts to persuade their colleagues. Such attempts at persuasion do not make employees agents of a union," the appeals court found, applying common-law agency principles. Here, the union never appointed any employee to serve on any committee on the union’s behalf, or to act as a communication conduit between the union and Con-Way employees. Rather, the union sent its own reps to the facility several times to meet with workers to shore up support. Misconduct by union observer. According to the employer, the union’s election observer had engaged in improper electioneering, surveillance, and list-keeping. He did in fact give the "thumb-up" and make "ambiguous" remarks to a few voters (like "this is how we do it" and "you know what you have to do"). Citing the Milchelm rule and "informed by a sense of realism," though, the court held these offhand comments didn’t amount to the kind of "sustained conversation" between a union and voters that would necessitate a second election. And there was no evidence that the observer was keeping a list of voters in violation of Board rules. Thus, while the court would not condone this conduct, it saw no basis for disturbing the Board’s findings that his behavior did not "destroy the atmosphere necessary for a free choice in the election." Fear and intimidation. The employer also alleged that the election took place amidst an atmosphere of fear and intimidation created by pro-union employees. It claimed that union agents and supporters harassed anti-union employees and threatened them with job loss, and that the union created a secret "hit list" in order to threaten anti-union workers. But rumors that union opponents would be discharged were unconfirmed and isolated, reaching only a small number of employees. As for the "hit list," there was no solid evidence of one; instead, all indications were that the union simply created a routine—and permissible—pre-election campaign list of which employees supported the union. "Such lists do not impact the integrity of an election." Also, a small number of union opponents reportedly found their cars vandalized right around the time of the election. But the culprits were never found, so there was no way to link the vandalism to union adherents. And while serious, there were only a few such incidents, and there was no evidence that any votes were impacted by the vandalism. Consequently, the Board reasonably found there was no effect on employees’ ability to freely cast their votes. Closeness of outcome. Con-Way argued that the closeness of the election results, combined with these other irregularities, was enough to taint the outcome and warrant setting aside the union win. However, the employer’s objections were largely based on "isolated events" involving rank-and-file workers, not the union itself, and Con-way’s evidence was not enough to make a prima facie showing that the alleged misconduct sullied the atmosphere of free choice. Therefore, the appeals court granted the Board’s application for enforcement.
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