July 1999

Workplace Labor Update - NLRB Election Upheld – July 1999

3 min

The U.S. Court of Appeals for the Fourth Circuit recently upheld a union election conducted by the National Labor Relations Board (NLRB or Board) despite a racially inflammatory rumor that spread through the plant on the day before the vote. In NLRB v. Flambeau Airmold Corp., 1999 WL 335342 (4th Cir. May 26, 1999), the court held that the NLRB's decision to certify the election results despite the rumor was reasonable and was supported by substantial evidence.

In March 1996, the Union of Needletrades, Industrial and Textile Employees filed a petition with the NLRB seeking to represent the employer's production and maintenance employees working at its North Carolina plastics plant. The union won the election by a narrow margin – 96 to 94. The employer objected to the election results, claiming that the union had made racial appeals which interfered with the “laboratory conditions” that must be maintained during the pre-election period. At a hearing on these objections, the employer produced evidence that, on the day before the election, a rumor circulated among the employees, two-thirds of whom were African-American, that one of their white supervisors had referred to employees as “niggers.” The NLRB's hearing officer found that the rumor had spread widely through the plant, but that neither the rumor's source nor its truth or falsity could be verified.

The employer argued that this patently offensive rumor made racial hatred an issue in the campaign to such a degree that the election was fundamentally unfair. The hearing officer disagreed, holding that although upsetting, the rumor had not destroyed the laboratory conditions necessary for a fair and free election. The NLRB affirmed the hearing officer's decision.

The Fourth Circuit's decision to enforce the Board's order to bargain with the union turned upon its determination that the NLRB correctly applied its “third-party conduct” standard. In evaluating a claim that pre-election conduct interfered with the vote, less weight traditionally has been afforded to the actions of third parties than to those of the employer or the union. Racially-charged comments of third parties are grounds for setting aside an election only if “the election was held in a general atmosphere of confusion, violence, and threats of violence, such as might reasonably be expected to generate anxiety and fear of reprisal.” The court noted that the higher standard is appropriate where third-party misconduct is at issue, because such statements do not have the same force as those from an employer or union, nor does setting aside the election have the same deterrent effect.

In the case before it, the court found insufficient evidence in the record to determine that the union had started the rumor. Accordingly, the court held that the Board correctly applied the third-party standard. The court further held in a conclusory fashion that the rumor did not so inflame the employees that they were deprived of the ability to make a reasoned choice at the polls. One judge who dissented from the majority opinion would have applied a lower standard and, considering factors such as the closeness of the vote, the temporal proximity of the rumor to the election, the pervasiveness of the rumor, and the seriousness of the rumor, would have overturned the election.

Under the standard adopted by the Fourth Circuit in this case, unless the employer can muster evidence that directly attributes the statement to the union, it will be extremely difficult to overturn an election infected by racially-charged rumors.