In a union election, it’s not just the CEO who needs to knock on doors – like in the picture below representing the famous 80’s record titled in this piece – and communicate with employees about whether or not to vote for union representation.  The employer’s supervisors fulfill a pivotal role in educating employees about that, as well.  The D.C. Circuit’s recent decision in Veritas Health Services, Inc. v. NLRB underscores the importance of employers properly identifying and classifying their supervisors before union activity occurs.

In Veritas, the union sought to organize the employer’s Registered Nurses (RN’s).  In doing so, it also targeted Charge Nurses.  The Charge Nurses, in turn, encouraged RN’s to attend union organizational meetings and even obtained signed authorization cards from RNs during the organizing.

The union and the employer ultimately stipulated to a voting unit in which the Charge Nurses were excluded as supervisors.  After this, the Charge Nurses changed their tune and then began campaigning against the union, including signing communications that went to all of the RN’s in support of the hospital.

The employer lost the election by almost a 2-1 margin.  The employer filed objections to the election and refused to bargain with the union.  The employer took the position that because the Charge Nurses (supervisors) at one point campaigned on behalf of the union, their conduct impermissibly tainted the election.  That is, when individual supervisors campaign on behalf of the union it creates confusion amongst the voting employees because of the mixed message – on the one hand the employer is sending a message that a union is not necessary, on the other hand, the supervisor, the employer’s agent, is sending a message promoting collective bargaining.

The Board, and subsequently the D.C. Circuit, rejected the employer’s arguments.  According to the D.C. Circuit, the conduct at issue by the Charge Nurses (before they swapped allegiances) did not rise to a level of coercive interference with the RN’s free choice in the election.  As the Court stated, even if the initial pro-union conduct could have been coercion or interference, the subsequent activities of the Charge Nurses in support of the employer during the election mitigated any such coercive or interfering effect.  As a result, the Court upheld the results of the election

Undeniably, an employer’s supervisors play a critical role when union organizing activity occurs.  Employees often ask their supervisors questions in order to make informed decisions about whether or not to join a union.  Supervisors are often trained to educate their employees about the collective bargaining process and operating with a unionized workforce.  If an employer’s supervisors support a union, then the message to employees indeed generates confusion.

Historically, when supervisors actively campaigned on behalf of a union, it was grounds for setting aside an election.  In 2004, however, the Board first began to heighten the standard of review of supervisory taint cases, and the Veritas decision is reflective of that heightened standard of review.

The not-so-subtle take home for employers here is to know who your supervisors are.  This includes looking at their specific duties, at their responsibilities, at the organizational chart, and making a determination now (as opposed to when union organizing activity occurs) about their supervisory status.  Do they hire, fire, discipline, evaluate or assign; are they actually responsible for the conduct and results of others?  If the conclusion is that the individuals are supervisors, then treat them like supervisors.  Include them in leadership or management meetings and educate them about the employer’s position on unionization and why, including a review of what to look for in terms of union activity and what they can and cannot say.  An informed and knowledgeable supervisory staff is an invaluable resource.

Todd Sarver focuses his practice on the representation of management in all aspects of labor and employment law. He has extensive experience representing employers in issues arising under the National Labor Relations Act, as well as in labor arbitrations, work stoppages, injunction proceedings, collective bargaining negotiations, corporate campaigns, unfair labor practice proceedings, labor litigation and bankruptcy proceedings.
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