In a closely watched decision, the National Labor Relations Board (the “NLRB” or the “Board”) set aside a union election win at a Dold Foods facility after finding language barriers interfered with employees’ ability to participate in the vote.
Background
The United Food and Commercial Workers had narrowly won the election, 277–266, in a vote to determine whether it would represent employees for purposes of collective bargaining. However, the employer challenged the results, arguing non-English-speaking employees were effectively excluded due to the lack of translators and English-only ballots.
The NLRB’s Regional Director agreed, concluding that these conditions undermined the “laboratory conditions” required for a fair election. Laboratory conditions are the environment needed for employees to freely and fully exercise their choice regarding union representation. As a result, the election was invalidated, and a new vote will likely be conducted.
The Board, in a divided decision, declined to reverse the lower decision. Member David Prouty dissented, arguing the wrong legal standard was applied and the evidence did not support setting aside the election.
Key Takeaways for Employers
This decision underscores that NLRB election procedures, particularly in diverse workplaces, must be carefully followed. Employers should be mindful that:
- Close election votes are particularly vulnerable to challenge (one of the many reasons a one-sided win is valuable);
- Language barriers can provide a basis to set aside an election (if in doubt, insist on bi-lingual government materials); and
- The NLRB will invalidate results where employees are not positioned to fully understand and participate in the vote.
Conclusion
For employers facing unionizing activity, this case highlights the importance of identifying and documenting potential election irregularities early, particularly in multilingual workforces. Use skilled Labor counsel who has experience handling union elections. Merely using reason and logic is insufficient.
Brody and Associates regularly advises its management clients on all labor management issues, including union-related matters, and provides union-free training and strategic guidance. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or (203) 454-0560.
