In response, the union filed a petition with the National Labor Relations Board (NLRB), claiming that this paragraph unlawfully tainted the election by causing the employees to fear they would lose their jobs if they voted for the union. Will the election rejecting union representation be set aside due to this allegedly coercive letter distributed by the employer prior to the election?
Answer: The election results were set aside and a new election ordered by the NLRB. An election will be set aside and a new one directed if the election campaign was accompanied by conduct that the NLRB finds:
- created an atmosphere of confusion or fear of reprisals, or
- interfered with the employees’ exercise of their freedom of choice of a bargaining representative as guaranteed by federal law.
In evaluating specific conduct, the NRLB does not attempt to assess its actual effect on the employees, but rather concerns itself with whether it is reasonable to conclude that the conduct tended to prevent the free expression of the employees’ choice.
Here, although the NLRB found that the letter should be considered in the context of other statements made by the employer during the election campaign, it was nonetheless objectionable and warranted a new union election. In particular, the letter failed to adequately explain the consequences of a strike and the rights of strikers. The "lost jobs" paragraph in the letter was improper because it led the employees to believe that they might lose their jobs if they went on strike. In addition, the employer failed to inform the employees that "permanently replaced strikers who make unconditional offers to return to work have the right to full reinstatement when positions become available and to be placed on a preferential hire list if positions are not available."
The employer relied on two mandatory meetings that it held prior to the distribution of the letter, during which it claimed that it explained to the employees the rights of strikers. Nonetheless, the NLRB found that the language in the letter was objectionable since it "had a reasonable tendency to coerce employees" and interfere with their free choice in the election.
Cite: Mariner Post-Acute Network, Inc., (1999) 329 NLRB No. 14, 1999-00 CCH NLRB 15,265.
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