By Ronald Miller, J.D.
An employer’s claim that an election should have been overturned because a union deceived voters by distributing a campaign flyer showing pictures of eligible voters, accompanied by statements of their intent to vote for the union, was rejected by the D.C. Circuit. The employer did not contend that the flyer was a forged document that was unrecognizable as propaganda, the appeals court noted. It also determined that a Board agent did not compromise the integrity of the election when she carried the election booth and the ballot box to the employer’s parking lot to permit a disabled employee to cast a ballot (Durham School Services, L.P. v. NLRB
, May 17, 2016, Edwards, H.).
In an election conducted by the NLRB, the Teamsters union prevailed by a wide margin in its campaign to represent school bus drivers and monitors. The employer challenged the election, claiming that the union had circulated misleading propaganda during the election campaign, and that a Board agent had engaged in inappropriate conduct during the election. An NLRB regional director recommended overruling the employer’s objections and certifying the union as the employees’ bargaining representative. The employer refused to bargain, the union filed unfair labor practice charges, the regional director issued a complaint, and the Board held that the employer unlawfully refused to bargain. The employer then petitioned for review of the NLRB’s decision and order, while the Board filed a cross-application for enforcement.
Union campaign propaganda.
The D.C. Circuit found no merit to the employer’s claims that the union impermissibly deceived voters by distributing a campaign flyer that contained pictures of eligible voters and statements misrepresenting their intent to vote for the union. Under Midland National Life Insurance Co.
, the Board “will not probe into the truth or falsity of the parties’ campaign statements and will not set aside an election on the basis of misleading statements unless ‘a party has used forged documents which render the voters unable to recognize propaganda for what it is.’” Here, the Board properly assumed the truth of all of the employer’s relevant evidence, but found it wanting under its well-established law. The Midland
rule has been accepted by the D.C. Circuit and a number of its sister circuits, the appeals court noted, and has been routinely applied in situations similar to the present case.
The employer did not contend that the flyer was a forged document that was unrecognizable as propaganda. Rather, the employer argued that Midland
should not apply where a union publicizes without permission how an employee intends to vote. However, the appeals court did not address that argument because the employer did not raise it before the Board. Because the employer’s evidence fell short of establishing a prima facie case of conduct that would warrant setting aside the election, it was not entitled to an evidentiary hearing.
Additionally, the appeals court rejected the employer’s assertion that a Board agent handling the election compromised the integrity of the proceeding when she carried the election booth and the ballot box to the parking lot so that a disabled employee could cast a ballot. The Board dismissed the second claim because there was nothing to indicate that “the manner in which the election was conducted raise[d] a reasonable doubt as to the fairness and validity of the election.” It was clear that the Board did not err in concluding that the manner in which the election was conducted raised no reasonable doubts as to the fairness and validity of the election, and in holding that no hearing was necessary, the appeals court found. In this case, the employer pointed to nothing in the record to support a claim that the Board agent engaged in any conduct that might have tainted the election proceeding.