Question

A week before a certification election, a WalShop store manager (who resides in Walnut) walks by a Rancho Cucamonga church in order to observe a union organizing meeting she read about on a bulletin board in the employee cafeteria.  According to her rough count, approximately a hundred of the 250 employees at the store were attending.  She looks for familiar faces from the sidewalk outside (and makes notes of what she observes) but does not attempt to make contact with anyone going inside the church.    After several nervous employees called the manager’s presence out to the union supporter, Arturo Cruz, Cruz comes outside and orders the manager to leave.  After a brief argument, the manager departs but not before wagging her finger at the church and shouting “Unions will be the death of us all!”   The union loses the election by a close margin (120 in favor of certification, 130 against).  Shortly thereafter, the union files an unfair labor charge against WalShop claiming that the supervisor’s presence and words constituted a “threat of reprisal” and thereby invalidated the election.  In testimony before the Administrative Law Judge (ALJ), the supervisor states she was merely in the neighborhood and walked by out of curiosity.  Management tells the ALJ that it neither ordered nor was aware of the supervisor’s action at the time it occurred. A regional vice president admitted, however, that he received a memo from the manager the day after the meeting describing what she had seen (including the names of some prominent employees in attendance) but claims to have taken no action based on the memo.   Does the union need to prove that an unfair labor practice charge occurred in order to invalidate the election?  Without regard to whether an unfair labor practice can be proven, should the election be ruled invalid (be sure to name the appropriate test the NLRB uses for judging elections and analyze the facts to determine whether that test can be proven)?  Be sure to explain your answer.

Answer 1

The Case Summary:

A manager of Walshop had read on the bulletin board of a union meeting. The manager came to observe the proceeding of the union meeting. The key observations were that 250 people attended the meeting. The union lost the election by getting 120 votes in favor and 130 votes against the certification. “The union files an unfair labor charge against Wal Shop claiming that the supervisor’s presence and words constituted a “threat of reprisal” and thereby invalidated the election.” The union leader had asked the manager to leave. The Manager left but after stating “Unions will be the death of us all!” and wagging a finger at the church. The management states they had not instructed the supervisor nor told the supervisor to visit the venue. A regional vice president admitted having received a memo about the proceeding but had not taken any action.

Case Analysis:

Yes, the union needs to prove that an unfair labor practice charge occurred and can request the election to be set aside. The labor union can file an objection to the manager's conduct that may have impacted the election.

The employer can show his support for or against the union under the first amendment. The opinion should be expressed without being “a threat of reprisal or promise any special employees benefits depending on the outcome of the election”. In this situation the statement “Unions will be the death of us all!” is seen as a threat of reprisal and wagging of the finger is also seen as a threatening gesture made by the supervisor. “The employer cannot violate section 8 (a) (1) which makes it unfair labor practice for the employer to “interfere with, coerce or threaten employees in the exercise of rights guaranteed under section 7 of the act.”

The employer may not “threaten employees with adverse consequences such as closing the workplace or adverse working conditions etc.” Here the manager who is also a supervisor has directly made an anti-union statement in a threatening manner. He has also given a memo to the regional vice president of the incident. His statement can be seen as a threat to employees freely expressing their view and also he has indicated that union is negative.

To sum it up the manager's statement with his threatening gesture of wagging the finger can be construed as violating the rights to free expression of the employees.