Professional Documents
Culture Documents
No. 14-1517
No. 14-1553
Argued:
Decided:
September 8, 2015
Petition for review granted in part and denied in part; crossapplication for enforcement granted in part, denied in part and
remanded by published opinion.
Chief Judge Traxler wrote the
opinion, in which Judge Wilkinson and Judge Floyd concurred.
Judge Wilkinson wrote a separate concurring opinion.
concluding
that
Intertape
committed
three
unfair
labor
second
election
violations.
order
in
be
held
based
upon
two
of
the
three
full.
For
the
reasons
set
forth
below,
we
grant
&
Forestry,
Rubber,
Manufacturing,
Energy,
Allied
and
maintenance
employees.
The
Union
filed
its
On
The Union
Both prior to and after the election, the Union filed with
the
Board
numerous
Intertape.
unfair
labor
practice
charges
against
J.A. 26.
Counsel
issued
complaint
against
Intertape
(the
Complaint).
Following a hearing, an administrative law judge (ALJ)
found that Intertape had violated Section 8(a)(1) of the Act by:
(1) interrogating employee Johnnie Thames regarding his views
about
the
union;
employees
break
(2)
confiscating
room;
(3)
union
literature
surveilling
from
employees
an
union
selecting
the
union
as
the
ALJ
also
its
collective-bargaining
recommended
that
the
election
be
room
in
March
2012;
and
unlawfully
surveilling
union
The
with
futility.
However,
the
Board
set
aside
the
the
correctly
following
determined
reasons,
that
we
Intertape
conclude
that
unlawfully
the
Board
interrogated
Intertape
engaged
in
unlawful
surveillance
of
union
activities.
II.
On review of orders issued by the NLRB, we must affirm the
Boards factual findings if they are supported by substantial
2
Medeco Sec.
Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998) (internal
quotations
marks
omitted).
Substantial
evidence
is
such
support
omitted).
conclusion.
Id.
(internal
quotation
marks
Id.
to
self-organization,
to
form,
join,
or
assist
labor
their
own
choosing,
and
to
engage
in
other
concerted
29 U.S.C. 157.
practice
restrain,
or
for
coerce
an
employer
employees
in
the
to
interfere
exercise
of
the
with,
rights
29 U.S.C. 158(a)(1).
An
had
reasonable
tendency
circumstances to intimidate.
in
the
totality
of
the
[t]he
prohibition
set
forth
in
8(a)(1)
is
Section 8(c)
provides that:
[t]he expressing of any views, argument, or opinion,
or the dissemination thereof, whether in written,
printed, graphic, or visual form, shall not constitute
or be evidence of an unfair labor practice under any
of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of
benefit.
29 U.S.C. 158(c).
III.
A.
We
begin
the
Boards
conclusion
that
Intertape
761
F.2d
at
965.
In
making
Nueva
determination
of
sought,
the
identity
of
the
questioner,
Id. at 966.
considered
[the]
whether
question
the
questioner
explained
or
provided
any
and
the
We have also
the
purpose
assurances
of
against
discuss
unionization,
see
Standard-Coosa-Thatcher
Carpet
Yarn
Div., Inc. v. NLRB, 691 F.2d 1133, 1137, 1139 (4th Cir. 1982).
In
December
of
2011,
Thames
was
disciplined
by
his
J.A. 234.
ALJ
conversation
credited
with
Thames
Williams
and
detailed
his
strong
account
recall
of
of
the
th[e]
questioning
circumstances,
was
J.A. 685-86.
of
Thames,
sufficiently
under
coercive
the
to
totality
have
of
made
the
Thames
As
appeal,
on
must
credibility
circumstances.
2001)
we
Boards
determinations
quotation
marks
circumstances
credibility
the
factual
absent
findings
extraordinary
(internal
Exceptional
accept
determination
include
is
and
alteration
those
omitted).
instances
unreasonable,
when
contradicts
other
No
of
the
conversation
over
Williams
denial
that
it
occurred.
We
hold
that
substantial
determination
that
Williams
union
sentiments,
as
evidence
questioning
described
by
supports
of
Thames,
the
Thames
was
Boards
about
his
sufficiently
and
grant
of
order.
this
portion
of
the
Boards
B.
We
next
consider
the
Boards
conclusion
that
Intertape
support
for
union
and
distributing
union
to
at
communicate
the
with
jobsite.).
one
another
The
regarding
workplace
is
self-
uniquely
therefore,
an
employer
may
not
confiscate
enforcement
of
Id. at 354.
a
valid
housekeeping
policy
that
workplace
clean,
but
that
right
will
not
prevail
where
to
and
the
union
campaign,
Intertape
activities
during
working
time
and
in
working
areas.
J.A. 33.
Consequently, the
J.A. 33.
At the hearing,
permitted.
Epps
testified
that
on
three
occasions
in
Epps also
break
room,
such
as
newspapers
and
magazines,
was
left
Epps also
union
literature
along
with
the
other
[n]ewspapers,
magazines, menus, and trash that had been left in the break
room, but he testified that he only did so as a part of his
normal housekeeping duties.
The
ALJ
found
that
unlawfully
confiscated
The
agreed,
Board
and
J.A. 528.
Intertape,
union
through
literature
additionally
from
found
Williams,
the
that
break
had
room.
Intertape
had
an
in
initial
finding
premise,
that
it
Intertape
had
argues
violated
that
Section
the
Board
8(a)(1)
by
of
if
the
the
issue
is
complaint
closely
and
12
has
connected
been
to
fully
the
subject
litigated.
Pergament United Sales, Inc., 296 N.L.R.B. 333, 334 (1989); see
Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1361 (4th
Cir. 1969) (All that is requisite in a valid complaint before
the Board is that there be a plain statement of the things
claimed to constitute an unfair labor practice that respondent
may be put on his defense.
been
policy,
accused
and
not
of
of
disparately
changing
its
enforcing
its
housekeeping
distribution
policy.
With
the
present
union
Complaint
and
the
issue
core
material
interfered
inception
left
with
of
Counsel
would
handled
the
the
the
the
violation
of
by
whether
Epps
employees
Complaint,
take
union
in
issue
found
the
Intertape
literature
the
by
the
Williams
Section
with
The allegation
knew
that
the
in
of
the
the
room
From
which
narrow
both
break
rights.
manner
within
handling
employee
7
Board
the
General
Williams
time
frame
rebut
literature
the
in
claim
a
manner
campaign practices.
that
that
Williams
differed
was
from
discarding
Intertapes
union
pre-
14
2.
Turning
to
confiscation
the
merits
violation,
of
we
Intertapes
hold
that
challenge
substantial
to
the
evidence
literature
from
the
break
room
was
an
unfair
trade
removed
union
Intertape
from
the
admits
break
that
room,
it
Williams
asserts
that
the
General
noted
above,
Epps
We are unpersuaded.
testified
that
literature
left
by
by
that
of
second
employee,
John
Jordan,
who
substantial
that
Intertape
evidence
supports
unlawfully
the
confiscated
Boards
union
C.
For the
facts
undisputed.
On
pertaining
April
24,
to
two
this
days
violation
before
the
are
largely
secret-ballot
No
the flyers, union supporters joined them at the gate and began
simultaneously
distributing
union
literature.
The
union
two
afternoons
in
question,
or
that
they
were
otherwise
not
alleged
to
be
campaign.
25.
During
the
periods
of
simultaneous
leafleting,
the
Board,
however,
surveillance
of
held
the
that
Intertape
engaged
in
union
activities
because
the
The
Board
attribute[d]
no
relevance
to
which
group
of
As to
right
to
summarily
communicate
rejected
it
with
as
its
well,
employees,
explaining
the
Board
that
such
conduct
under surveillance.
that
places
employees
union
activities
J.A. 679-80.
2.
It
has
observing
long
its
been
established
employees
on
that
company
an
employers
property
act
during
of
union
and
employees
who
choose
to
engage
in
their
NLRB,
(internal
726
F.2d
quotation
705,
709
(11th
marks
omitted);
Cir.
1984)
Emenee
(per
curiam)
Accessories,
Inc.,
union
organizers
conversing
with
employees
who
were
reporting for work); Milco, Inc., 159 N.L.R.B. 812, 814 (1966)
19
any
management
representatives
made
notes
or
otherwise
recorded what they saw, notwithstanding that they could see the
interactions between the employees and the union organizers).
The
exception
employers
to
observation
this
of
general
union
rule
arises
activities
can
be
when
the
reasonably
(4th Cir. 1990) (per curiam) (noting that the Board has on
several occasions found that employers unreasonably chilled the
exercise of their employees Section 7 rights through excessive
surveillance) (emphasis added); cf. NLRB v. Arrow-Hart, Inc.,
203 N.L.R.B. 403, 403 (1973) (noting that an employers act of
coercively surveilling that is, spying upon its employees
activities
would
be
violation
of
the
Act).
As
stated
because,
because
he
[w]hen
believes
20
an
employer
they
are
watches
engaged
.
in
union
Id. at 967.
The employee,
thereafter
activities.
feel
reluctant
to
participate
in
union
F.3d 1039, 1045 (4th Cir. 1997) ([A]n employer violates section
8(a)(1) of the Act if it gives employees the impression that it
is conducting surveillance of their union activities.); J.P.
Stevens & Co., 638 F.2d at 683 (It is an unfair labor practice
for
an
employer
impression
that
activity.).
illegal
to
he
create
is
in
closely
the
minds
observing
of
union
employees
an
organizational
because
it
indicates
an
employers
opposition
to
Id.
in
unlawful
surveillance,
or
unlawfully
creates
the
of
whether
the
employers
21
conduct,
under
the
[totality
of
the]
circumstances,
was
such
as
would
tend
to
Southern
whether
the
employer
in
other
coercive
behavior
legitimate
otherwise
engaged
reason
being
for
present
observing
at
the
the
place
activities
or
where
alleged
the
for
967 (upholding violation where two supervisors went to an offsite location for the purpose of surveilling a scheduled union
meeting
and,
when
no
meeting
occurred,
the
supervisors
344
N.L.R.B.
1342,
1342
(2005)
(finding
unlawful
to
occurrence,
the
parking
and
[t]he
lot
was
employer
surprising
and
established
an
no
unusual
legitimate
S.J.P.R.,
Inc.,
306
N.L.R.B.
172,
172
(1992)
of
public
union
activity
and
[t]here
[was]
no
and
the
employer
failed
to
demonstrate
legitimate
case
presents
an
additional
and
somewhat
unusual
typical
unlawful-surveillance
situation,
Intertapes
There was
no
protected
union
speech.
activity
And
when
to
observe
the
union
when
they
supporters
24
began
joined
this
them
in
this
protected
activity,
the
supervisors
and
the
union
supporters
noted
earlier,
Section
8(c)
684.
Counterbalancing
the
of
the
Act
limits
the
8(a)]
prohibition
evidence
of
an
unfair
labor
practice
under
any
of
the
(emphasis
congressional
added).
intent
to
Section
encourage
8(c)
free
party
debate
on
issues
manifest[s]
healthy
and
25
stable
bargaining
process.
American
Pine,
164
F.3d
at
875
(internal
quotation
marks
omitted).
Given
the
competing
but
protected
interests
at
play,
speech
rights
as
protected
by
subsection
8(c)
and
8(a)(1),
and
the
proviso
to
subsection
8(c).
Procter & Gamble Mfg. Co. v. NLRB, 658 F.2d 968, 983 (4th Cir.
1981); see also Gissel Packing, 395 U.S. at 617.
The protection
8(a)(1)s
surveillance
speech.
and
prohibition
Section
against
8(c)s
coercive
protection
of
or
an
excessive
employers
who
were
soliciting
employees
in
the
employers
Intertape
leafleting
was
supervisors
merely
out-of-the-ordinary
because
--
the
insofar
supervisors
as
they
had
J.A. 679.
27
Plainly,
to
transform
Intertapes
protected
Section
8(c)
recent
activities,
cases
the
involving
Board
coercion element.
the
has
employer
seemed
surveillance
to
ignore
this
of
union
critical
supervisors
ability
to
observe
employees
as
the
supervisors
threatening in nature.
leafleting
coercive,
intimidating,
or
leafleting
or,
for
that
matter,
that
they
were
28
Although an employers
act
that
of
observing
employees
in
way
is
out
of
the
coercive
or
threatening
in
nature.
See,
e.g.,
officials
where
may
such
observe
activity
public
occurs
on
union
activity,
company
premises,
585-86
(while
supervisors
routine
observation
of
by
observing
them
in
always
considered
the
way
that
is
out
of
the
employers
reason
for
being
in
of
coercion
or
intimidation
requires
no
less.
See
It
knew
all
the
time
it
is
that
the
[union]
was
behavior
supporters
arrived
at
to
all,
because
by
counter-leaflet
the
time
alongside
the
union
them,
the
Intertapes
workforce.
That
Intertape
responded
to
Rather, in light
through
its
own
gate-side
ordinary.
30
leafleting
seems
entirely
this
argument,
the
Board
is
Id.
Indeed, by
effectively
requiring
choose
them.
to
engage
The
Act,
in
identical,
however,
protected
explicitly
conduct
protects
the
here.
Similarly,
Intertapes
mere
act
of
supporters
or
other
employees
were
engaged
in
union
election
of
to
their
simultaneous
employees.
leafleting,
During
the
the
Intertape
two
short
supervisors
There is no
or
that
they
attempted
to
persuade
employees
or
signal to them that they should not accept the union leaflet in
addition to or in lieu of the employers leaflet.
that
reasonably
they
have
otherwise
been
engaged
construed
as
in
And there is no
behavior
coercive,
that
could
intimidating,
or
threatening.
Under the totality of the circumstances -- which includes
the
absence
of
any
threatening
expression
that
could
have
to
conduct
their
leafleting
activity
in
noncoercive
and
the
foregoing
reasons,
we
hold
that
substantial
the
election.
Accordingly,
we
decline
to
enforce
this
and
petition
deny
for
Specifically,
it
in
part,
enforcement
we
enforce
and
in
we
part
that
grant
the
and
deny
portion
of
the
Boards
it
cross-
in
part.
Boards
order
upon which the Board set aside the election, see supra at 5 &
n.2, the Board will also find it necessary to reconsider its
decision to direct a second election.
PETITION FOR REVIEW GRANTED IN PART AND DENIED IN PART;
ENFORCEMENT GRANTED IN PART AND DENIED IN PART; REMANDED
34
of
union
activity
improperly
compromised
labor
practices
alleged
by
the
General
Counsel
had
the
first
comparatively
election
minor.
were
The
huge,
Boards
and
its
decision
infractions
to
order
were
new
acknowledge,
however,
that
circuit
precedent
does
not
leave me to my own devices. See, e.g., NLRB v. Low Kit Min. Co.,
3 F.3d 720, 729-30 (4th Cir. 1993); Daniel Const. Co. v. NLRB,
341 F.2d 805, 809-10 (4th Cir. 1965). As a result, I join the
courts opinion, including the terms of the remand order, which
provides
simply
that
the
Board
35
will
find
it
necessary
to
warrants
additional
reflection
and
reexamination,
and
our
blessings,
labor-management
however,
is
relations
growing
smoother.
bureaucracy,
Behind
vast
dissenting).
This
power
draws
its
strength
from
its
this
potential
for
abuse
meets
little
36
passing
bill
in
both
houses
and
surviving
potential
on
the
administrative
Administration,
114
state.
Harv.
L.
Elena
Rev.
Kagan,
2245,
Presidential
2259
(2001).
Arlington,
dissenting)
Tex.,
(President
133
S.
Ct.
Truman
at
1878
colorfully
(Roberts,
described
his
C.J.,
power
of
the
Administrative
State:
Prescription
for
agencies
capacious
power
to
effectuate
broad
policies
person
from
engaging
in
any
unfair
labor
practice.
29
37
require
persons
practices
to
effectuate
the
found
take
engaged
such
policies
or
engaging
affirmative
of
this
in
action
unfair
.
[subchapter].
.
Va.
labor
as
will
Elec.
&
Power Co. v. NLRB, 319 U.S. 533, 539 (1943) (quoting 29 U.S.C.
160(c)).
Fortunately, however, the American people eventually added
an
important
condition
Administrative
to
Procedure
the
Act
administrative
(APA).
bargain:
[F]ramed
against
the
a
might
otherwise
have
carried
them
to
excesses
not
hundreds
controlled
or
of
thousands
regulated
of
.
Americans
.
by
whose
agencies
of
affairs
the
are
Federal
38
review that decision. A few years after the passage of the NLRA,
the Supreme Court held that the Act indicates a purpose to
limit
the
review
afforded
[under
the
NLRAs
judicial-review
proceeding,
that
decision
is
not
subject
to
Elec.
Workers,
308
U.S.
413,
414
(1940).
By
withholding
459
(1940),
the
Court
followed
legislators
perceived
39
even
though
the
Boards
unfair
labor
practice
then
company
give
has
the
Board
engaged
determination,
at
in
long
the
an
last,
opportunity
unfair
will
labor
to
find
practice.
provide
the
that
And
the
this
predicate
for
its
refusal
to
bargain
by
claiming
that
the
second
Boards
direction
direction
is
the
order.
say
but
this
of
remedial
for
two
second
portion
reasons.
40
of
The
election
the
first
when
Boards
that
final
involves
the
order
addressing
the
conduct
of
that
election
and
any
before
employees
even
have
shot
at
voting
recent
Fifth
Circuit
case
declined
to
extend
judicial
certification
review
the
review
context).
Boards
of
And
second-election
even
second-election
in
orders
decisions
order,
courts
in
declining
have
the
to
noted,
41
found
that
Intertapes
pre-election
activity
involved
the
Board
components
of
ordered
the
Boards
new
order
election.
are
not
But
the
something
the
heels
of
the
above.
J.A.
681.
The
Board
ostensibly
42
hollow
formalism,
and
the
Boards
own
Statement
of
is
especially
the
case
where,
as
here,
we
have
of
the
NLRA
forbids
judicial
review;
quite
the
43
Boards
do-over
election
order
severs
the
historically
more)
susceptible
to
agency
caprice
than
is
an
agency
finding of liability.
The
Supreme
Court
has
always
assumed
that
Congress
intended the judicial review provisions of both [the APA and the
NLRA] to be equivalent, and it has read the NLRA as if it
included
an
arbitrary
and
capricious
test.
Diamond
Walnut
Growers, Inc. v. NLRB, 113 F.3d 1259, 1266 (D.C. Cir. 1997) (en
banc)
(citing
Universal
Camera
v.
NLRB,
340
U.S.
474,
487
(1951); Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301,
30910 (1974)). One need not ascribe independent jurisdictional
force to the APA in order to note that the guiding principles of
administrative law - arbitrary and capricious review under the
44
their
authority.
[I]t
is,
of
course,
the
most
Branch
Courts
v.
Smith,
538
U.S.
1940
cases,
which
254,
some
281
later
(2003).
courts
The
wrongly
those
1940
decisions
are
likewise
distinguishable
from
must
remain
mindful
of
the
real
jurisdictional
limitations on our reviewing role under the NLRA. See, e.g., Low
Kit Min. Co., 3 F.3d at 729-30. We have been careful to respect
the
Boards
management
of
representation
proceedings
where
warranted. See e.g., Perdue Farms, Inc. v. NLRB, 108 F.3d 519,
521 (4th Cir. 1997). Here, however, we consider the impact of
the APA on the NLRA jurisdictional provisions in a case where an
election has been held and the Boards finding underpinning a
second-election order has been overturned. Our duty is to deny
enforcement to those remedial directives that are arbitrary,
capricious, or contrary to law, 5 U.S.C. 706, and that are
indistinguishably part of Board final orders concededly ripe for
45
and
on
account
of
comparatively
minor
company
yield
different
result.
Second,
the
Boards
order
both
employees
voted
142-97
against
the
union,
candidate
has
won
more
lopsided
share
of
the
of
U.S.
Presidential
Elections,
46
Here,
we
hear
only
three
minor
complaints.
First,
an
about
his
union
sentiments.
But
this
interrogation
occurred before the critical period, and the Board rightly did
not rely on it when ordering a new election. J.A. 680. Next,
Intertape expedited the cleanup of a break room that, at most,
involved the removal of certain material for several hours on 2
days
approximately
Intertape
Polymer
Miscimarra,
month
Corp.,
before
360
dissenting).
the
NLRB
No.
Finally,
election.
114,
at
Intertape
J.A.
*3
682;
(Member
conducted
Board
found
that
this
parallel
leafletting
constituted
as
the
court
notes,
it
gives
short
shrift
to
U.S.
dissenting)
359,
(An
386
(1998)
employers
(Rehnquist,
free
speech
C.J.,
concurring
right
to
and
communicate
infringed
by
union
or
the
47
Board.).
The
Board
found
unlawful
surveillance
because
Intertape
supervisors
do
not
not
resort
to
leafletting
for
day-to-day
personnel
hold
broadly
that
simultaneous
leafletting
involves
choose
to
engage
in
identical,
protected
conduct
any
event,
these
alleged
infractions
could
not
have
employees
did
not
vote
differently
because
of
48
scare
so
many
workers
from
expressing
their
true
beliefs via secret ballot. The NLRA does not require the Board
to treat employees as if they were bacteria on a petri dish that
must be kept free of contamination. NLRB v. Lovejoy Indus.,
Inc., 904 F.2d 397, 402 (7th Cir. 1990). The Boards ultrasanitized
approach
gives
too
little
weight
to
the
jockeying
would
quite
possibly
be
contested
and
litigated
as
well. Where does it all end? There are of course instances where
the employer will abuse its very position as employer and render
elections something other than the product of free choice. There
will of course be situations where the result of an election
will be fatally compromised by unfair labor practices, but this
was not one of those, and the Boards remedial order revealed an
insensitivity to the burdens that agency actions can impose upon
those
companies
who
possess
but
official overreach.
49
limited
recourse
to
check
mechanical
eBay
Inc.
v.
rules
mandating
MercExchange,
injunctive
LLC,
547
relief.
U.S.
388,
See,
393-94
infringement
absent
exceptional
circumstances).
It
has
determines
the
scope
of
the
remedy.
Swann
v.
Affairs
v.
Inclusive
Cmtys.
Project,
Inc.,
135
S.
Ct.
of
does
not
proportionality,
take
agency
administrative
expertise
50
to
agencies
determine
can
that
too.
It
landslide
the
Board
could
have
pursued
more
proportionally
attention
to
the
misconduct
without
the
unnecessary
Boards
inconsistent
direction
with
decisions
have
misconduct
actually
follow
Markets,
the
its
Inc.,
own
inquired
which
past
more
affected
stringent
of
requires
election
practice.
thoroughly
the
harmless
new
elections
error
new
rule
was
also
Previous
into
Board
whether
outcome.
of
Super
election
unless
Some
any
do
Thrift
it
is
51
to
the
election
and
the
closeness
of
the
final
vote. Fjc Sec. Servs., Inc., 360 NLRB No. 6, 2013 WL 5703601,
at *9 (Oct. 18, 2013) (citing Taylor Wharton Div., 336 NLRB 157,
158 (2001)). No matter which standard it invokes, however, in
many of its past cases the Board has determined that it will not
order a new election where misconduct does not materially affect
election results. In Clark Equipment Co., for example, the Board
found that an employers misconduct could not have affected the
results of the election, because with a tally of 391 for, and
489
against
terms
than
the
that
union
in
(a
this
result
case)
less
the
lopsided
election
in
percentage
[could
not]
be
This
terse
analysis,
however,
resembles
strict
52
error.
Kotteakos
v.
United
States,
328
U.S.
750,
765
to
declare
belief
that
[the
violation]
was
harmless
(1967).
That
the
Boards
intolerance
of
marginal
NLRA
new
election
is
likely
to
be
arbitrary
and
the
first
elections
results.
What
could
be
more
good
reason
to
believe
that
the
result
will
be
any
standard
of
materiality
when
overruling
objections
to
of
showing
that
infractions
materially
affected
the
53
180, 188 (2d Cir. 1989) (holding that the Board did not abuse
its discretion in failing to set aside [the unions victory in
an] election because the failure . . . did not affect the
outcome of the election). It is unclear why the Board should
not also use a standard of materiality and certify an election
which was fundamentally fair, even if not impeccably perfect.
This is a neutral standard; neither an employers nor a unions
marginal
infractions
under
the
NLRA
should
be
grounds
for
fair
and
free
choice
of
bargaining
representatives
by
employees. NLRB v. Ky. Tenn. Clay Co., 295 F.3d 436, 441 (4th
Cir. 2002). But courts must not rubber stamp Board decisions
- they can and must step in when the Board goes beyond what
good
sense
permits.
Comcast
Cablevision-Taylor
v.
NLRB,
232
F.3d 490, 495 (6th Cir. 2000). In this case, the Boards action
ran counter to a prime objective of our labor law -- that of
supporting employee democracy. The Boards decision to order a
new election on the basis of minor violations at worst, and
under a shifting and unreasonably stringent harmless error rule,
failed to honor the fact that the employees in this company made
54
clear
choice
as
to
union
representation.
One
would
have
end
where
began.
join
the
courts
opinion.
The
assured.
Still,
the
workers
vote
should
matter;
the
review
of
Board
second-election
55
orders
might
be
56