Employment Alert: NLRB Ruling Paves the Way for More Off-Site Union Elections

The National Labor Relations Board ("NLRB") recently issued a ruling calling into question its long-standing presumption that union elections are best held on employer premises. The decision will make it more difficult for employers to counter a union organization campaign. The case is 2 Sisters Food Group, Inc.

Facts of the Case

In 2008, the United Food and Commercial Workers International Union ("the Union") commenced a union organizational campaign at a 2 Sisters Food group site ("2 Sisters") in California.

The election was held on July 17, 2009, at the 2 Sisters facility. The Union lost. It then filed unfair labor practice charges ("ULPs") against 2 Sisters that contained 53 objections to the election.

The ALJ overruled most of the objections but found that 2 Sisters had interfered with the election by publicly insulting Union supporters. The ALJ also found a ULP when 2 Sisters terminated a known Union supporter and allegedly made an example of her by escorting her out of the facility with a guard.

The ALJ thus recommended that the election results be set aside and a new one held.

On the basis of its alleged 53 ULPs which, the Union contended had irrevocably tainted the election process, the Union asked that the new election be held away from 2 Sisters' premises.

What the Court Said

The National Labor Relations Act is silent about the location of elections. And although the NLRB may designate the site of an election, it has traditionally delegated that responsibility to the regional directors.

The regions' policies and practices, in turn, have been to always conduct elections at the employer's site. The practical reason in favor of the Board's preference for the employer site is that it optimizes voter turnout.

In a dramatic curtailment of the regional directors' discretion, the NLRB here set out four factors to determine where to hold an election.

First, the regional director should weigh the petitioner's objection to having the election on the employer's premises against the employer's request that it be held there.

The second factor is the nature and extent of the employer's prior unlawful or allegedly-unlawful conduct.

The third factor is the advantage available to the employer if the election is conducted on its premises. Specifically, the Union in this case argued that the employer's premises created an intimidating environment in which employees voted.

The final factor is an evaluation of the proposed alternative sites, including their accessibility to voters, the NLRB's ability to supervise the election, whether the parties have equal access to the site, and the costs of conducting the election on the site.

With those factors in mind, the NLRB remanded the case to the regional director to decide where to hold the rerun election.

What Employers Should Do

This case represents a significant departure from prior practice and makes it easier for unions to seek to hold elections away from the employer's premises.

Whereas traditionally, the regional director presumed that the employer's site was the optimal venue for the election, now the employer must submit argument in favor of holding an election at its own premises. This shifts a burden to the employer that it did not previously bear.

This decision emerges in the context of the NLRB's quick election rule, posting rule, and initiative to require disclosures by employer representatives, thereby increasing the burdens that employers face during elections.

For more information about this and other employment matters, please contact:

Manesh K. Rath (+1 202.434.4182, rath@khlaw.com),
Robert A. Sheffield (+1 202.434.4139, sheffield@khlaw.com).