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Deception in Polling of Employees Before Election May Be Coercion
Description Appeals court reversed decision of NLRB to ignore union materials issued right before a representation election. The materials claimed that a large majority of the employees supported the union when the vote showed that not to be true. Such misrepresentation requires the NLRB to investigate the matter, not ignore it and certify the union.
Topic Labor Law
Key Words Representation Elections; Coercion
C A S E   S U M M A R Y
Facts The NLRB declared the union a winner of an election in which 19 votes were cast for the union out of 45 eligible voters. The employer refused to bargain with the union, claiming it engaged in unfair labor practices in the election campaign. Three hours before the election, the union distributed a flyer listing the names of 31 employees who were committed to voting for the union. In fact, some of the employees were not so committed. The NLRB held this flyer was not relevant to the outcome of the election and certified the union. The employer appealed.
Decision Reversed. The employer should have been granted a hearing on its objections to the election so the issue of union misrepresentation could have been reviewed. The NLRB is charged with upholding fundamentally fair procedures, which it failed to do in this instance. When deception is pervasive or likely to make it difficult for employees to distinguish truth from untruth, the NLRB may have to order a new election. If the pre-election polling of employees by the union is found to be coercive, the election results may also be challenged.
Citation NLRB v. Gormac Custom Manufacturing, Inc., 190 F.3d 742 (6th Cir., 1999)

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