Affiliated Computer Services, Inc., 355 NLRB No. 163 (Aug. 27, 2010), involves the issue of whether outside political interference in a union representation election is sufficiently objectionable conduct so as to require the setting aside of the election and the scheduling of a rerun. It also involves the issue of what the Board should do with election results following two-Member Board decisions. In this case, an earlier two-Member Board decision rejected the employer’s objections to an election the union won, and certified the results. That decision was invalidated by the Supreme Court in New Process Steel.
Affiliated Computer Services, Inc. performs services for various governmental entities, including the New York State Thruway Authority for which it administers the state E-Z Pass Program. The Communications Workers of America, Local 1102 was engaged in an organizing campaign designed to organize ACS employees working on the company’s E-Z Pass Program. The union won the election by a vote of 144 votes for the union and 126 against the Union, with 2 challenged ballots. The employer filed objections to the election, including objecting to communications from two elected political figures that interfered with the election.
The two elected officials—U. S. Congressman Michael McMahon and New York State Senator Diane Savino—wrote a series of letters, on official government letterhead, critical of the employer’s position with respect to the union campaign. The letters also were circulated by the Communications Workers of America as part of its union organizing campaign.
Congressman McMahon’s letter stated, in part, “Additionally, I have been informed that management is attempting to dissuade workers from joining the Communications Workers of America (CWA) Local 1102. This is discouraging news and I hope that it is not accurate.”
Senator Savino’s letter stated, in part, “I understand that you will soon decide whether or not to join the Communications Workers of America. I have worked closely with the CWA for years, and have known them to be a union that fights each and every day for their members.”
In addition, Senator Savino’s second letter offered to host an “open forum” on the union organizing campaign where “representatives from the Organizing Committee, the CWA, and the ACS management can discuss all the issues in an atmosphere free from innuendo or threats.”
The letters circulated by the union also pointedly informed employees that each elected official was a member of the influential transportation committees in their respective political bodies, strongly implying that as members of committees which oversee the employer’s business they could be influential in economic and transportation matters vital to the employer and its employees in the E-Z Pass Program.
In this case, a Board majority consisting of Chairman Liebman and Member Becker refused to set aside the union’s victory. The majority held that “public officials, even public officials involved in the regulation of the employer’s industry, like other third parties, are not required to remain neutral and may properly seek to persuade employees.”
The majority believed that there was no basis to find that the employees were confused by the letters, that they were misled into believing that the Government supported the union in the election, or that the letters threatened adverse economic consequences if the union lost the election.
In denying the employer’s request for review, the Board held that here, the third-party conduct did not create among voters a general atmosphere of fear and reprisal.
In partial dissent, Member Schaumber argued that the letters upset the “laboratory conditions” necessary for a fair election and that it is “myopic to ignore the influence that correspondence, such as the letters at issue, may have on voters’ exercise of their free choice.” Member Schaumber stated that “[i]n short, while I do not question the right of public officials to express their personal views either in support of or against unionization, it is the Board’s province to safeguard the laboratory conditions of elections conducted under its auspices.”
In this case, Member Schaumber argued that the Board should go beyond the test of whether the conduct “created a general atmosphere of fear and reprisal.” Instead, the standard should be whether the employer demonstrated the letters were objectionable and disseminated to a determinative number of voters. Under such circumstances, Member Schaumber would set aside the election without application of the third-party standard.
Significance: Although the new Board majority would not find pro-union letters supporting the union sent from elected public officials to be objectionable, one wonders how the Board would have ruled if those letters were from elected public officials opposing the union. One thing is certain: decisions such as Affiliated Computer Services will only encourage unions to seek the assistance of elected public officials—especially those whom the union supports through political campaign contributions—to become more involved on behalf of the union in organizing campaigns.