During a representation election campaign, it is inevitable that statements will be made that are factually inaccurate. It is up to the parties to correct the misstatements, half-truths, allegations, or inaccuracies of their opponent.
Ultimately, it is up to the employees to evaluate the statements made by employer representatives and union advocates in making their decision to vote for or against union representation. Under certain circumstances when one party does not have an opportunity to reply, a campaign misrepresentation could very well affect the outcome of an election. The Board has been called upon by the losing parties to set aside such elections and to order rerun elections on the basis of violation of its electioneering rules, even though the conduct did not amount to an unfair labor practice.
The Board's changing position on this matter is discussed later on. In Bausch & Lomb, Inc., v. NLRB, the Second Circuit Court affirmed the NLRB's invalidation of a representation election in which an employer mailed a letter to employees two days before the election, informing them that the union local at another company plant had recently agreed to a contract without a Christmas bonus provision.
The letter failed to mention that the union had obtained a wage increase and extended sick pay in exchange for dropping its Christmas bonus demand. The union lost the election. In rejecting the company's allegation that the Board had abused its discretion in invalidating the election, the court noted that the test set forth in the Board's Hollywood Ceramics case had been satisfied. First, the misstatement was of a material fact; the employees would obviously be concerned with such a valuable right. Second, the union did not have time to reply; the letter was received just two days prior to the election.
Third, the company In 1977, after 15 years' experience under Hollywood Ceramics, a majority of the Board decided in Shopping Kart Food Market, Inc.,99 over a vigorous dissent, to overrule Hollywood Ceramics.
The Board stated in Shopping Kart that it would "no longer probe into the truth or falsity of the parties' campaign statements" but would instead recognize and rely on employees "as mature individuals who are capable of recognizing campaign propaganda for what it is and discounting it."
The majority also held that the Board would intervene "in instances where a party has engaged in such deceptive campaign practices as improperly involving the Board and its processes, or the use of forged documents which render the voters unable to recognize the propaganda for what it is." Twenty months after its Shop- ping Kart decision, a Board majority reversed Shopping Kart and reinstated its Hollywood Ceramics rule.
100 Reversing itself again four years later, a Board majority reverted to the Shopping Kart policy in its Midland National Life Insurance decision.
101 As presently applied, the Shopping Kart-Midland National Life rule applies to misrepresentations by either side. And, as is evident from the North American Directory decision the rule is now court-approved.
The text discusses propaganda and misrepresentation in elections to determine whether or not workers will have union representation. As you can see, the NLRB decided on the position espoused in Hollywood Ceramics. The NLRB reversed the Hollywood decision in Shopping Kart Food Markets, Inc. Sometime later it reversed itself and went back to Hollywood. It then reversed itself and went back to Shopping Kart again!
Why do you think the NLRB has been so schizophrenic in this area and which position do you think is correct in deciding when the NLRB should intervene in a representative election issue? Why?