When we published our list of decisions most likely to be overturned by the current Board, we included Harborside Healthcare, Inc., 343 NLRB 906 (2004), a case addressing the circumstances under which pro-union activity by supervisors will constitute objectionable conduct warranting a new election. However, in Terry Machine Co, 356 NLRB No. 120 (Mar. 28, 2011), the Board passed on this opportunity "for institutional reasons," instead finding current precedent was sufficient to rule against the employer.
In Harborside, the Board articulated a two-step test to determine whether prounion supervisory conduct upsets the laboratory conditions for a fair election. The first step is "whether the supervisor's prounion conduct reasonably tended to coerce or interfere with the employees' exercise of free choice in the election." The second step examines "whether the conduct interferes with freedom of choice to the extent that it materially affected the outcome of the election." In applying this test, the Board, in Harborside, found that solicitation of union authorization cards was inherently coercive absent mitigating circumstances.
In Terry Machine Co., the Board applied this test in examining the prounion activity of two supervisors who collected signatures for pro-union petitions. However, the Board found that the employer's antiunion campaign "mitigated any potentially coercive effect of the prounion" supervisors. In its analysis, the Board cited to the employer's disavowal of the supervisors' support for the union through letters sent to employees, and by informing employees in face-to-face meetings that the prounion supervisors did not represent the company's position. In prior proceedings, the Board had found that the employer threatened to discharge the supervisors and "the employees were aware that these [supervisors] might soon be incapable of either rewarding them for supporting the union, or punishing them for not doing so."
In dissent, Member Hayes disagreed that "the employer's lawful antiunion campaign could have mitigated the impact on employees of solicitation by prounion supervisors who actively opposed that campaign."
Significance: It could be that the Board did not decide to modify Harborside in this case simply because it did not need to. The fact that the case has spent some 12 years moving through the Board and the courts could also have motivated the majority simply to apply precedent as it did. However, Chairman Liebman and Member Pearce would not have included a footnote stating that they were applying Harborside for institutional reasons if they were not thinking of modifying Harborside in a future case.