Panel’s Half-Hearted Enforcement of NLRB’s Union Certification Casts Doubt on Key Precedent

On Friday, a panel of the D.C. Circuit unanimously upheld the National Labor Relation Board’s certification of a union election despite grave misgivings about the judicial and agency precedent the court was forced to apply [pdf].  

Pro-union employees led by Jennings Brown, a member of the in-plant Union Organizing Committee, threatened some of their co-workers with job loss if they did not support the Union. At least three employees took these threats seriously enough to ask their employer for assurances that the threats were false. The union supporters also “harassed co-workers with profanity and racial epithets” and defaced a poster “with profane and racist language.”

Under the applicable precedent, an employee who solicits authorization cards, as the pro-union employees did, is considered an agent of the union only as to his statements about “purported union policies.”  Thus, even though many of his co-workers considered Brown to be a Union representative (and even though Brown himself “may have fancied himself a Union representative”), the Board evaluated his harassing behavior under the lenient standard applicable to third-party misconduct.  The Board will only set aside an election because of third-party behavior if it was “so aggravated as to create a general atmosphere of fear or reprisal rendering a free election impossible.”

Applying that “impossibility” standard, the court upheld the Board’s decision even though the Union won the election by a narrow margin (56 to 51), and the pro-Union employees’ harassment could well have affected the outcome.

All three judges agreed with the result reached by Judge Brown‘s majority opinion, but Chief Judge Sentelle and Judge Henderson both filed separate opinions that are sharply critical of the relevant precedents.

Although he concurred in the judgment, Chief Judge Sentelle explicitly questioned the correctness of the court’s precedent holding that employees do not become apparent agents of the union by being members of the Union Organizing Committee or by drafting pro-union leaflets. The Chief Judge dissented from the holding that unreasonable job-loss threats could not create an apparent agency relationship:

The idea that the existence of an agency relationship can be determined by the reasonableness of the representation made by the possible agent seems to me wholly illogical. There seems to me to be no inherent reason why actual agents could be presumed to say only reasonable things, and self-appointed agents could be presumed to say unreasonable things.

Judge Henderson echoed these concerns, questioning “whether our hands-off approach has provided these employees with a free and fair opportunity to choose their collective bargaining representative as guaranteed by the National Labor Relations Act.” In particular, she suggested that “impossibility” standard applicable to third-party misconduct is too demanding, because even “fellow employees can have a ‘hereafter’ effect on the results of an election. Whether the Union wins or loses, beginning the day after the election, a threatened employee will still have to deal with his harasser.” Judge Henderson added that the cases treating an employee who solicits authorization cards as a union agent only as to his statements about union policy “unnecessarily limited the scope of the employee’s agency and in turn expanded the Board’s application of the ill-begotten impossibility standard.”

In a court as small as the D.C. Circuit, a petition for rehearing en banc is usually futile. But that calculus may be different where two judges on the panel indicate that the precedent they are bound to apply needs a fresh look.

NLRB v. Downtown Bid Servs. Corp., No. 11-1199 (June 22, 2012) (Brown, J., with Sentelle, C.J., concurring in part and dissenting in part, and Henderson, J., concurring) 

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