1. Employer Contesting Recently Fired, Gun-Toting Former Employee’s Presence at Union Election Site, Must Prove it Actually Affected Outcome of Election.

Those who are unfamiliar with how the NLRB conducts union elections, might be surprised to learn just how particular are its procedures. Employee notices of election information – date/time/location – must be posted in advance; Board Agents are present for on-site elections; and each side is entitled to have an observer present during voter registration, to challenge the eligibility of someone attempting to vote. However, neither union officials/business agents, nor the employer’s management, are allowed in the polling area out of concern their presence might interfere with employee choice. However, these concerns do not seem to square with a recent, and very disturbing, NLRB decision that certified the results of an election despite objections to the union’s selection of a former employee to serve as its observer at the polls who days earlier had been fired for brandishing a replica handgun at work!

Each employee voting in the election in this case, per normal protocol, first had to register with a panel consisting of a Board Agent and one union and one management appointed observer. The union chose as its observer an employee who was fired for brandishing a fake (but authentic looking) handgun in the lunchroom at work and threatening to shoot people. When the employer challenged the results of this election as tainted by the presence of this individual at the polls during voting, the NLRB ruled that the employer had failed to produce evidence that this prejudiced the outcome of the election. This seems to be a double standard. The NLRB does not require evidence of actual prejudice or harm to employees to support union claims of unlawful employer behavior, so why require such proof of employers, especially in such an extreme case as this? The Board frequently places itself in the shoes of employees to imagine/assume they would be coerced, for instance, by employer social media policies where no evidence of coercion or impact on employees exists. Would it not seem fair then to assume that the presence of a co-worker fired for pulling out a very real looking gun and threatening to shoot people just days earlier, might have intimidated employees as they came to vote?

2. Union Contesting Employer’s Behavior During Election Campaign, Need Not Prove Unlawful Practices Actually Affected Outcome of Election – NLRB Certifies Union as Winner Despite Losing the Vote.

In an unrelated case, the Board ruled that the Steelworkers Union won representational status for workers at a Novelis Corp. plant in New York, despite losing the election. The NLRB determined that the employer’s unfair labor practices committed during the organizing drive – union allegations that it changed Sunday and overtime pay, and made threats of adverse consequences if the union got in – tainted the election such that employees could not freely vote. Notably, there did not appear to be any specific evidence that any employee’s vote was actually affected by the company’s alleged conduct. Double standard? You be the judge.