By Ronald Miller, J.D. Because the Board agent conducting a union election improperly refused to allow a union its designated observer, a divided three-member panel of the NLRB agreed with a hearing officer’s recommendation to set aside the election and hold a new election. The electorate may reasonably interpret the absence of observers for one party, or an imbalance in the number of observers, as a sign that the Board is partial to the party with the greater number of observers or that the party with the greater number of observers is responsible for running the election. Such an impression would reasonably tend to interfere with the fairness and validity of the election. Member Miscimarra filed a separate dissenting opinion (Longwood Security Services, Inc., July 19, 2016). The union petitioned to represent an employer’s special police officers. The parties entered into a Stipulated Election Agreement that included a provision authorizing each party to station an equal number of authorized, nonsupervisory-employee observers at the polling places. The union initially designated an employee as its observer, but he was unavailable on the election date. Approximately 30 minutes before the start of the scheduled voting session, a union representative asked the Board agent conducting the election to allow him to substitute as the union’s observer. The Board agent refused, citing the representative’s status as a nonemployee union official. The election proceeded with an observer for the employer, but none for the union. Before the second voting session began, the representative again requested to serve as the union’s observer, but was again denied that request. Election procedure. The employer won the election, and the union filed an objection to the conduct of the election. In this instance, the Board agreed with the hearing officer that the Board agent’s conduct raised a reasonable doubt as to the fairness and validity of the election. The Board concluded that the agent should have followed the procedure articulated in Browning-Ferris Industries of California, for Board agents to follow when they become aware that a party intends to use a potentially objectionable observer. Under this procedure, the Board agent must advise the parties of the potential adverse consequences of using the observer—that the election might be set aside if an objection is filed and it is later determined that the use of the observer was not reasonable under the circumstances. The Board agent should then allow the election to proceed with the observers chosen by the parties, leaving to the objections process the resolution of any issues that might be raised as to the reasonableness of the use of the questionable observer. Because the Board agent did not follow the procedure outlined, but instead refused to allow the union representative to serve as an observer, and caused the election to proceed with only an employer observer present, his conduct resulted in a breach of the stipulated election agreement. The Board has long held that the breach of a provision in an election agreement providing for an equal number of observers is a material breach that warrants setting aside the election without the need for a further showing of prejudice. Union representative as observer. The fact that representative was a union official, as well as a nonemployee, did not require a different analysis. "The Board’s principal goal in conducting representation elections is to guarantee employees’ freedom in exercising their choice with respect to union representation." To that end, the Board has adopted a per se rule that individuals closely identified with management may not serve as observers, without imposing a parallel prohibition on individuals closely identified with a petitioning union. "Employees are aware that the employer wields substantial and direct control over their livelihoods and day-to-day working conditions." A union, however, does not possess the same degree of control over employees’ working conditions. Accordingly, absent evidence of misconduct, service by a union official as an observer is not grounds to set aside a representation election. The Board also found no merit to the employer’s contention that the union representative serving as an observer would have constituted a material breach of the stipulated election agreement. Rather, the Board has found that this standard clause is aimed at preventing supervisors of the employer from serving as election observers; it is not intended to preclude nonemployees from serving as observers. Because the representative was not a supervisor of the employer, he was not ineligible under the agreement. Dissent. Contrary to the majority, Member Miscimarra argued that the Board agent acted appropriately when she denied the request to permit the union representative to serve as an observer. According to the dissent, the concerns underlying the Board’s decision in Browning-Ferris were not present here. Observing that the union rep was a high-ranking union official, Miscimarra argued that this type of imbalance would have destroyed the integrity of the election process, noting that the representative was personally responsible for the union’s organizing activities. Further, he argued that numerical imbalance should not obscure the fact that had the union rep been allowed to serve as an observer, the status of the observers would have been strikingly unequal. The resulting arrangement plainly would have resulted in an invalid election under Nathan Katz Realty, explained Miscimarra.
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