A responsibility of the National Labor Relations Board is to protect employees’ right to a free and fair choice of labor representatives. Given that, it would make sense if the NLRB set aside union elections because one of the parties tried to influence the vote by deception.
But since the 1982 NLRB decision, Midland National Life Insurance Co., 263 NLRB 127 (1982), the Board has concluded that only in cases of extremely deceptive campaign practices, it would not review the veracity of campaign literature during union election campaigns and that union election results would only be set aside when the misleading statements are “forged documents which render the voters unable to recognize propaganda for what it is.”
On May 9, 2014, in Durham School Services, 360 NLRB No. 108 (2014), the NLRB three-member panel applied the Midland standard which let the International Brotherhood of Teamsters Local 991 off the hook for distributing deceptive campaign propaganda in its efforts to organize employees at Durham School Services.
The Teamsters, on the day before the election, distributed a flyer, which comprised around 80 names and photos of eligible voters with captions proclaiming their intent to vote for the union.
But one of the Durham employees shown on the union flyer, April Perez, said in an affidavit she did not intend to vote for union representation, nor authorize the Teamsters to use her photo and attribute a quote to her. In addition, Perez had no intention of publicizing how she intended to vote.
So, Durham School Services, the employer, relying on Ms. Perez’s affidavit, filed an objection with the NLRB, which alleged, “the Union deceived voters by distributing a campaign flyer that contained pictures of eligible voters and statements misrepresenting their intent to vote for the Union.”
However, according to the NLRB decision, Perez admits she signed a waiver, which she did not read, giving the Teamsters authorization to use her photo. Thus, the Board concluded, “there is no basis to conclude, as a factual matter, that the Union engaged in any misrepresentation.”
But that is not all. The NLRB members’ decision makes clear, even if Perez did not support the Teamsters or authorize them to use her image that under the Midland standard, the Teamsters did nothing wrong:
At most, then, the Employer’s evidence suggests a possible misrepresentation of an employee’s sentiments which, under Midland, provides no basis for setting aside an election.
Unfortunately, due to the Midland standard, the current pro-union Board has a lot of leeway to rule unions’ use of misrepresentation and deception is acceptable.