Manual Secret Ballot (Truly Yours Digital Editions Book 402)

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Pat Roberts. Kansas saw a congressional race last year between Ron Estes and Ron Estes, so the misspelling caused confusion. Marty Lederman blogs. AP reports. My thoughts on the news via Del Wilber:. This development is ominous. It almost certainly means the career attorneys working for the Department of Justice refused to go along with what Trump wants to do now with the citizenship question on the census.

This is really intriguing. Looks like maybe the leadership of DOJ Federal Programs which usually would have representation here declined to go along with this farce, but Consumer Protection Branch! Marty Lederman on the strong grounds for applying estoppel against the government in the census case:. Claim that you want to add the citizenship question to the Census in order to enable the CVAP-based drawing of district lines in The data we have comes from the American Communities Survey ACS , which has one interesting advantage over the Census: it uses statistical sampling, which the Census does not, and which can be essential for curing problems of nonresponse.

I predict that the government may well conclude that the Evenwel Gambit is the best they can do: it has the great virtue of being true enough that it cannot be dismissed as post hoc pretext, yet it is not nearly so blatant in its disregard for basic norms of impartiality in governance as Real Reason 1. The case they would make is simple: CVAP and total population are two rival approaches to drawing district lines. They would ask the Court to allow the Census question in order to give jurisdictions the option of choosing equally weighted votes over equal representation.

This is in line with I wrote at Slate back in May :. The question whether it is permissible to draw districts in the way Hofeller wanted is an open one. Justices Clarence Thomas and Samuel Alito, however, wrote concurrences affirming their belief that states have the right to draw districts in this way. There is good reason to believe that the other conservative justices would come along should they have to decide the issue.

The newly revealed census documents may now give them the opportunity to do just that. The smoking-gun evidence showing that government officials lied in offering the Voting Rights Act excuse for including the question likely will be seen by these justices as irrelevant if the real reason is a permissible one. Judge Hazel order , rejecting the DOJ gambit :. The Court has received and appreciates the discovery plans submitted by both sides. The discovery contemplated by the Court related to the recently discovered evidence in this case goes directly to that issue. Given that time is of the essence, therefore, the prudent course is to proceed with discovery.

As both sides acknowledge, the schedule may be adjusted as circumstances warrant. In a new filing , the Department of Justice has told the federal district court in Maryland considering whether the addition of the citizenship question on the census was done for reasons of racial animus that the government may still come forward with a reason for including the question. Further, the government argues that any new reason would have to be judged by its own terms, as the courts did in the travel ban case. It wants to stop all discovery of bad motives for the original decision as no longer relevant.

This is quite an act of political chutzpah. Either there is a reason for including the citizenship question or there is not. Nothing to see here court, please move on. And I think this case is likely to proceed in the trial court on the question of discriminatory animus. Governor statement. The day the opinion came out I saw that Chief Justice Roberts left an opening for a do-over by the Trump Administration. No one who brings such cases needs citizenship data from the census, and the Trump Administration is bringing no such cases And later released secret documents from the Hofeller files show that the real intent was to boost white, Republican voting power which would hurt Latinos.

This pretext was too much for Roberts, joined in this part of his opinion by the liberal Justices. The government appeared to concede the case was over, there were reports of the Trump cave, and a Trump tweet turned everything around. His own tweets suggests he wants to know the number of non-legal residents, but the proposed census question does not ask about legality of residence, only citizenship. This puts them in an ethical dilemma, one which seemed to catch them off guard. But the problem for the administration is that there are injunctions in place preventing the inclusion of the question, whether or not the APA applies.

And if it still looks like the Administration is offering a pretext, I do not expect the lower courts to lift those injunctions. There has even been talk of the Administration simply ignoring the courts , which would create a constitutional crisis. If the administration goes forward with the new reason, there will be a quick resolution of the equal protection claim in the Maryland Court.

This is the claim that the question was added with the intent to discriminate on the basis of race. This is an issue the Supreme Court never decided, and would present an independent ground to block the question. And the lower court judge in the Department of Commerce case also would have to be convinced that any new reason is not a new pretext. This means that if the Administration pushes the issue, it is going to be back before the Supreme Court, during the summer, with Justices scattered and new clerks in place.

These reversals and rule via tweet smack of amateur hour. This has got to be annoying Roberts, who is no doubt paying attention.

Rick Hasen's blog

So it still all comes down to Roberts, if the administration wishes to push this hard. Harry Litman WaPo oped. Thanks to all for participating! Rucho Rucho Symposium. Common Cause Rucho symposium. Rucho Symposium. Sam Wang: Resolving the proportional representation problem for state courts Rucho Symposium. This stance has the consequence of disregarding the careful work of five lower courts in Wisconsin, North Carolina, Maryland, Ohio, and Michigan. Resolving this conflict is not simply of academic significance. State courts may yet act to curb partisan gerrymandering under their laws and constitutions.

Surely some of the same questions will arise. I think this particular problem arises from poor communication between scientists and lawyers. He asserts that claims of partisan gerrymandering rely on an assumption about what would be appropriate levels of representation. Specifically, he says that the number of seats is not guaranteed for a given number of votes cast statewide — a quota of sorts. Smart lawyers may object: nobody is arguing for proportional representation.

Roberts objects to any diagnostic tool that uses the number of seats won by either party. This may fly in the face of intuition. After all, partisans gerrymander to win as many seats as possible. But suspend that for a moment. To be sure, some tests use wins and losses for their calculation. The efficiency gap comes to mind, as well as partisan bias.

But another concept that can be tested: inequity of opportunity , i. This concept echoes existing concepts in discrimination law and fits with previous doctrine on racial gerrymandering — a must if we are ever to have a coherent doctrine of fair districting. Defining a racial gerrymander is a mature subject. Was a group packed? Then it would have lopsidedly large wins. Was a group cracked between districts? Then its opponents would have carefully arranged, narrow wins. A court can inspect individual districts for evidence of packing and cracking by race.

It can also do so for party. If a court is willing to look at an aggregated statewide pattern of legislative-district-level election returns, here are examples of tests that probe for inequity of opportunity:. Lopsided wins. The t-test, perhaps the most widely used statistical test in all the sciences, does this. Uniform wins. In a party-dominated state like Maryland, were the wins engineered to be very uniform, thus protecting the majority party? The chi-square test does this. Map-simulation methods. Wesley Pegden, Moon Duchin, Jonathan Mattingly, and others have done large-scale map simulation to detect if a plan produces an outlier in terms of the number of seats.

An opportunity-and-outcome framework can be used in state courts. In a forthcoming article, Rick Ober, Ben Williams, and I review how all fifty state constitutions contain rights and protections which can be used to bring a partisan gerrymandering claim. These include analogues of the First and Fourteenth Amendments; guarantees of pure, free, and fair elections; and redistricting-specific guarantees such as geographic compactness. Because each of these protections involves either individualized or associational harms, the Roberts and Kagan opinions in Gill v. Whitford offer state courts guidance for how to apply their own constitutional provisions to a partisan gerrymandering claim.

Of course, some mental adjustments are necessary. Legal scholarship on election law has focused on federal courts. Almost immediately after the news broke of Ms. In particular, Ms. Katz, of engineering the disqualification of so many affidavit ballots. They pointed out that the commissioners of the Board of Elections are selected by the county party leaders, before being approved by the City Council. State senators Alessandra Biaggi and Julia Salazar, who won their seats last year by challenging incumbent Democrats from the left, also blamed Ms.

Katz or the county commissioner for Ms. NYT reports. The Rucho decision is hard to get your head around. As many commenters have since noted, that a majority of justices were unable to call a spade a spade will trouble anyone who cares about giving voters a fair shake in the democratic process.

What Rucho means for racial discrimination in districting is less clear. For decades now, court after court has attempted to untangle racial and partisan motivations of line drawers. Will Rucho mark the end of this slog? Will every line drawer who sorts voters by race simply cite political ends as the predominant motivating factor to escape racial gerrymandering rulings?

Recent experience in Virginia suggests it will not be so simple. I observed a morning of testimony in the remand trial of Bethune Hill v. In question after question he proclaimed that his decisions were guided purely by partisanship. Asked about one line drawing decision, he said it had been crafted to draw a democratic legislator out of her district. Asked about another he explained that protecting a Republican incumbent supplied his motivation.

His confessions on the stand seemed incredible—my non-lawyer seatmate expressed shock that the witness admitted to such bare partisan motive. Of course, North Carolina line drawers were just as bold with the same goal in mind: to avoid a racial gerrymander ruling. Will the tactic of citing partisan motives to get off the racial gerrymandering hook work? Plaintiffs in Bethune Hill convinced a majority of the three-judge district court on remand that partisan claims were pretext—that racial considerations were unconstitutionally driving line drawing decisions in the challenged districts. Call of the Mountain by Yvonne Lehman.

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    Dream Chasers by Becky Melby. For the Love of Books by Donna Robinson. Val's Prayer by Terry Fowler. Copper and Candles by Amber Stockton. Therefore, a significant lapse of time could occur between when a term expires and a new Board Member is confirmed, which means that a new Board Member might serve only a portion of a five-year term.

    The law is administered and enforced principally by the National Labor Relations Board and the General Counsel acting through 52 regional and other field offices located in major cities in various sections of the country. The General Counsel and the staff of the Regional Offices investigate and prosecute unfair labor practice cases and conduct elections to determine employee representatives. The five-member Board decides cases involving charges of unfair labor practices and determines representation election questions that come to it from the Regional Offices.

    By William B. MIT Press, In contrast to the situation in other regulatory agencies—most of which are also quasi-judicial—this political allocation is a matter of custom, not of law. Congressional Research Service, November 26, The Railway Labor Act RLA was enacted in , and its coverage extends to railway and airline carriers, unions, and employees of the carriers.

    The RLA guarantees employees the right to organize and collectively bargain with their employers over conditions of work and protects them against unfair employer and union practices. It lays out specific procedures for selecting employee representatives and provides a dispute resolution system that aims to efficiently resolve labor disputes between parties, with an emphasis on mediation and arbitration.

    The RLA provides multiple processes for dispute resolution, depending on whether the dispute is based on a collective bargaining issue or the application of an existing collective bargaining agreement. The Statute recognizes the right of most non-postal federal employees to bargain collectively and to participate, through labor organizations of their choice, in decisions affecting their conditions of employment. The Authority adjudicates unfair labor practice disputes and issues raised by representation petitions and exceptions to grievance arbitration awards, and resolves negotiability disputes raised by the parties during collective bargaining.

    Federal Labor Relations Authority, December 16, The U. Federal Labor Relations Authority FLRA is responsible for establishing policies and guidance regarding the labor-management relations program for 2. In , the FLRA celebrated the 50th anniversary of the Order, which established the first government-wide, labor-management relations program within the federal government. In , President Nixon established the Federal Labor Relations Council by Executive Order to administer the federal labor-management relations program and to make final decisions on policy questions and major disputes arising under Executive Order Implementing this procedure, the FLRA conducts secret-ballot elections for union representation and resolves a variety of issues related to questions of union representation of employees.

    No member shall engage in any other business or employment or hold another office or position in the Government of the United States except as otherwise provided by law. The President shall designate one member to serve as Chairman of the Authority. The Chairman is the chief executive and administrative officer of the Authority. An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced.

    The term of any member shall not expire before the earlier of—. The General Counsel may be removed at any time by the President. The General Counsel shall hold no other office or position in the Government of the United States except as provided by law. C exercise such other powers of the Authority as the Authority may prescribe.

    The Authority is empowered to … review the decisions of Regional Directors in representation disputes over union elections and unit determinations. Decisions of the ALJs may be appealed to the Authority. In addition, through delegation by the Authority, the Regional Offices process representation petitions and conduct secret ballot elections. American Bar Association, February 8, Also excluded is the U. Postal Service because it is a government-owned corporation and is not an agency within the meaning of section a 3. Postal Serv. Employees of the U. By Evan M. Berman, James S.

    Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, The institutional structure and legal rights related to collective bargaining vary by level of government, jurisdiction, and occupational groups. National labor laws that govern collective bargaining and representation rights for federal and private sector employees do not pertain to state and local government employees.

    Currently, 31 states and the District of Columbia authorize collective bargaining for public employees. In some instances, however, executive orders or local ordinances confer rights to bargain or have representation. Edited by Jack Rabin. CRC Press, Pages — At most private employers, workers make the choice through elections overseen by the National Labor Relations Board. Your get your union if a majority of the workers voting in the election vote for the union.

    The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof…. Last modified May 21, Beverage Co. NLRB agents will then investigate to make sure the Board has jurisdiction, the union is qualified, and there are no existing labor contracts or recent elections that would bar an election.

    Petition for certification of representatives. The NLRB can conduct such an election only when a petition has been filed requesting one. A petition for certification of representatives can be filed by an employee or a group of employees or any individual or labor organization acting on their behalf, or it can be filed by an employer.

    If filed by or on behalf of employees, the petition must be supported by a substantial number of employees who wish to be represented for collective bargaining and must state that their employer declines to recognize their representative. If filed by an employer, the petition must allege that one or more individuals or organizations have made a claim for recognition as the exclusive representative of the same group of employees.

    Who can qualify as bargaining representative. It is NLRB policy to direct an election and to issue a certification unless the proposed bargaining agent fails to qualify as a bona fide representative of the employees. Bars to Election— Existing collective-bargaining contract. The NLRB has established the policy of not directing an election among employees presently covered by a valid collective-bargaining agreement except in accordance with certain rules.

    These rules, followed in determining whether or not an existing collective-bargaining contract will bar an election, are called the NLRB contract bar rules. Not every contract will bar an election. Examples of contracts that would not bar an election are:. Time provisions. Under the NLRB rules a valid contract for a fixed period of 3 years or less will bar an election for the period covered by the contract.

    A contract for a fixed period of more than 3 years will bar an election sought by a contracting party during the life of the contract, but will act as a bar to an election sought by an outside party for only 3 years following its effective date. A contract of no fixed period will not act as a bar at all.

    The NLRB agents will seek an election agreement between the employer, union, and other parties setting the date, time, and place for balloting, the ballot language s , the appropriate unit, and a method to determine who is eligible to vote. However, an election may be postponed if a party requests to block the petition based on charges alleging conduct that would interfere with employee free choice in the election, such as threatening loss of jobs or benefits by an employer or a union, granting promotions, pay raises, or other benefits to influence the vote. When an election is scheduled, the Employer is required to post a Notice of Election which will replace the previously posted Notice of Petition for Election.

    Elections to certify or decertify a union as the bargaining representative of a unit of employees are decided by a majority of votes cast. Observers from all parties may choose to be present when ballots are counted. Any party may file objections and an offer of proof in support of its objections with the appropriate Regional Director within 7 days of the vote count. Failure to bargain with the union at this point is an unfair labor practice. Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….

    Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. A by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees.

    Last modified September 12, In the construction industry, however, the same rules do not apply. Such bargaining agreements may not be repudiated during the life of the Agreement; yet, upon expiration of the pre-hire agreement, the signatory Union does not enjoy a presumption of majority status, and either party may repudiate the bargaining relationship at that time.

    It shall not be an unfair labor practice under subsections a and b of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged or who, upon their employment, will be engaged in the building and construction industry with a labor organization of which building and construction employees are members not established, maintained, or assisted by any action defined in subsection a of this section as an unfair labor practice because.

    Election details, such as time, place, and notice of an election, are left largely to the Regional Director who usually obtains the agreement of the parties on these matters. National Labor Relations Board, April 18, Decided 3—0. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows two for and two against the Petitioner, with no challenged ballots. Neither the Petitioner nor the Employer filed objections to the election.

    Following the 9 July election, Jeffrey P. Fudge, an eligible voter, complained by letter dated 28 July , and received by the Subregional Office 31 July , that he had arrived at the polling area prior to the scheduled 5 p. It shall be an unfair labor practice for a labor organization or its agents …. A employees in the exercise of the rights guaranteed in section of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or ….

    Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section a 3 of this title. Examples of labor organization conduct that violates the law:.

    The 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 subchapter, if such expression contains no threat of reprisal or force or promise of benefit. Higgins, Jr. National Labor Relations Board, August Second, that the choice of a bargaining representative was the exclusive concern of the employees and that the employer did not possess an interest sufficient to permit to intrusion.

    There was some conflict in the court of appeals and as is not infrequently the case when a conflict of principles becomes sharp enough in a significant area of law which by its nature is prone to a high emotional boiling point, the highest court of the land inevitably has to pass on it. This happened here. In , in NLRB v. The Court decided that the National Labor Relations Act did not prohibit employers from expressing their views about labor organizations, and this, for all practical purposes, marked the death knell of the so-called neutrality or enforced-silence requirement which had prevailed during the first 6 years.

    This did not come as too great a surprise, for about a year earlier in Thornhill v. Alabama , U. Examples of conduct the Board considers to interfere with employee free choice are:. The Employer may speak freely with the Employees concerning its position on unionization, but it cannot promise benefits nor threaten reprisals for Union activity. The Excelsior rule requires the employer to file with the Regional Director an election eligibility list containing the names and addresses of all eligible voters within 7 days after approval by the Regional Director of an election agreement or after a direction of election, and this information must be made available by the Regional Director to all parties in the election proceeding.

    See also J. Phillips, Inc. In Trustees of Columbia University , NLRB , the Board declined to require that the employer provide the e-mail addresses of the unit employees in compliance with the Excelsior rule. Compliance requires that the employer provide the full first and last name of the employees. To be timely, the eligibility list must be received by the Regional Director within the required time; no extension of time is granted except in extraordinary circumstances. The filing of a petition for review does not stay this requirement.

    If the payroll period for eligibility purposes is subsequent to the election agreement or direction of election, the list must be filed within 7 days after the close of the determinative eligibility period. Failure to comply with this rule is deemed interference with the election and a ground, on proper objection, for invalidating the election. A list of eligible voters would include phone numbers and email addresses when available. In this posture, too, the election was set aside despite the absence of actual coercion. Peoria Plastic Co. The rationale for invalidating elections involving the assembly of employees is not unlike the rationale in cases involving home visitations by officials and supervisors of the employer.

    In the latter situation the Board has made it clear that, whether or not the remarks during such visitations were coercive in character, the technique of visiting employees at their homes to urge them to reject the union as their bargaining representative is a ground for setting aside an election. See, for example, F. Calderwood, Inc. Before leaving this line of cases, it should be explained that the Board has not drawn an analogy between home visitations by union representatives in the preelection period and home visitations by supervisors.

    Unlike employers, unions often do not have the opportunity to address employees in assembled or informal groups, and never have the position of control over tenure of employment and working conditions which imparts the coercive effect to systematic individual interviews conducted by employers. Thus, not only do unions have more need to seek out individual employees to present their views, but, more important, lack the relationship with the employees to interfere with their choice of representatives thereby.

    Last modified April 20, Fordham Law Review , The employer had a no-solicitation rule which forbade organizational activities only during working hours. His antiunion activity included several noncoercive speeches to the assembled employees during working hours while denying the union equal opportunity to reply. After several elections, which the union lost, had been set aside, the union filed an unfair labor practice charge.

    The Board majority dismissed the complaint, holding:. One week before the election, the employer told its employees to report back to the shop at 3 p. At the meeting, which lasted from 3 to p. Although the employees normally would have received their paychecks at 4 p. Following the meeting, the employees were not fully compensated for the time spent at the meeting. The Board found that employee attendance at the meeting was mandatory and that employees were compelled to remain for its entire duration as a condition of receiving their paychecks.

    He noted that it is not unlawful for an employer to subject its employees during working time to antiunion remarks. Member Stephens also noted that no employee left the meeting before it ended, the employer did not prevent any employee from leaving after 4 p. National Labor Relations Board, December 29, Among the issues that the Board has had to determine in this area of law is the one that deals with the assembly of employees by the employer at a focal point of authority. Indeed, in General Shoe itself this was a question for the Board to decide.

    In Economic Machinery Co. In some instances the interviews were as long as 3 hours. In NVF Co. Elson Bottling Co. United Aircraft Corp. The Board does not use a mechanistic approach but gives full consideration to all the circumstances. Three Oaks, Inc.

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    A significant exception to the rule relating to employee interviews at the plant is found in Mall Tool Co. In that case, the employer spoke to about half of its employees at their workbenches. The interviews lasted no more than 3 minutes. In these circumstances, the interviews were distinguished from the Economic Machinery Co.

    See also Frito Lay, Inc. National Labor Relations Board. Decided 2—1 partial dissent. See Struksnes Construction Co. Camco , F. Id; see also Cannon Electric Co. Decided 2—1. Both the Board and the courts agree that the starting point for determining whether unlawful interrogation has occurred is the five-factor test set forth in Bourne v. NLRB , F. Gissel Packing Co. The ALJ said:. The setting of the interrogation was a general meeting of employees and the record does not reflect that the union sympathies of those present were known to [Perdue].

    The questioner was a high official of [Perdue] who gave no assurances that by asking the question the employees would have nothing to fear. Additionally, Chappell was from the Maryland headquarters and did not have any established friendly relationship with the Alabama workers. See Bourne , F. Joint Bd. In his questions to employees, Chappell appeared to seek information about individual employee union sympathies factor 2.

    Allegheny Ludlum Corp. Perdue claims that the ALJ considered circumstances outside the Bourne factors, i. See Midwest Reg. But Perdue received the complaints over a month before the Union filed its election petition, the company immediately met with employees to warn them that Union organizers representing themselves as Perdue agents were reportedly visiting employee homes, and the meeting at which Chappell questioned employees occurred over two months later, a week after the election had been scheduled.

    Trujillo testified that on or about June 4, , in the midst of the organizing campaign, Shalley approached him while he was sitting alone in a warehouse office completing paperwork. A few days later, on June 9, Shalley again approached Trujillo in the warehouse office. The Board affirmed. In its petition for review, Shamrock contends both that the conversations never took place, and that even if they did, they did not violate the NLRA. This argument requires little discussion. National Labor Relations Board, August 26, Decided 3—0 with 1 partial dissent.

    This case was tried before me in Yakima, Washington, over 53 hearing days during and , on an amended consolidated complaint issued by the Regional Director for Region 19 of the National Labor Relations Board the Board on October 9, Employees are entitled to either express their opinions about labor unions and unionization and they are equally entitled to keep their opinions to themselves.

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    Supreme Court, January 27, Decided 6—3. NLRB, U. Approaching fellow employees in the work place regarding activities, organizations or causes, regardless of how worthwhile, important or benevolent, can create unnecessary apprehension and pressures for fellow employees. Such conduct is inappropriate and unnecessary. No employee shall solicit or promote support for any cause or organization during his or her working time or during the working time of the employee or employees at whom such activity is directed. The General Counsel concedes that this rule, which was in effect prior to the union organizing campaign, is valid on its face.

    He argues, instead, that the Respondent discriminatorily enforced the rule in violation of Section 8 a 3 and 1 by applying it to discipline employees Pam Smith, Maria Andrade, Rosa Salas, and Sonia Abundiz for discussing the Union while working in While delivering the motor to the plant, Smith, an active union organizer, initiated a conversation, which included references to the Union, with employee Gabriel Villarreal while she waited for Johnson.

    Johnson testified that as they walked to the plant, Smith asked him how he felt about the Union and told him that a union would mean better wages and benefits. Although Johnson indicated he did not support the Union, Smith continued to press him about it. Smith later continued her conversation about the Union with Villarreal during an approximately minute trip to the local hardware store to do an errand for Johnson. Smith does not deny that her conversations with Johnson and Villarreal occurred during working time and were intended to solicit and promote support for the Union.

    The Respondent also received complaints from five other employees that prounion employees Andrade, Salas, and S. One employee testified that she asked her supervisor to move her workstation away from Abundiz to escape the harassment. Andrade and Salas did not deny that they solicited support for the Union during worktime. Abundiz did not testify. It is a violation of company policy to solicit during work hours. The Respondent also removed Smith from her parts runner position, a demotion resulting in loss of premium pay. The judge also stressed that there was no showing that these conversations interfered with the work of Smith, Andrade, Salas, S.

    Abundiz or any employee. The rule, on its face, prohibits solicitation and the promotion of support. These terms are to be understood in terms of the overall purpose of the rule. That purpose is readily apparent from the opening sentence of the rule. The former is allowed. The latter is not, irrespective of whether the cause is the union or something else. Finally, the fact that there was no actual interference with work does not render unlawful the rule or its application.

    Stoddard-Quirk Mfg. There is, however, no requirement that actual interference be shown to justify the rule. The conduct for which Smith, Andrade, Salas, and S. Thus, the Respondent clearly permits employees to talk among themselves while working, without restriction as to subject matter, so long as their personal discussions do not rise to the level of solicitation or promotion within the meaning of the rule.

    Pam Smith did not merely talk to Johnson and Villareal about the Union—she persistently urged them to support the Union. Andrade, Salas, and S. Abundiz also did not simply talk to their coworkers about the Union—they constantly pressured them to attend meetings and to support the Union. This conduct is precisely that which the Respondent intended by proscribing promotion and solicitation. Thus, based on a concededly valid rule, the Respondent lawfully prohibited employees from soliciting or promoting support for a cause during working time. The majority erroneously dismisses the complaint allegations that the Respondent violated the Act by disciplining four employees for talking about the Union….

    Pam Smith, a long-term employee of the Respondent, was a particularly active union supporter. On September 4, , 3 she spoke to two employees during working time about the advantages of unionization, but she did not present them with a card or petition to sign. Future solicitation during work hours will result in dismissal.

    As the judge recognized, an employer violates the Act when it prohibits talking about the union during work-time while permitting discussions about any other subject. That is precisely what occurred here. Although the Respondent permitted talking on the job about a wide variety of subjects unrelated to work, it discriminatorily singled out the four employees in question for discipline because they spoke in favor of the Union. Grainger, Inc. The majority concedes that the Respondent could not discipline the employees for merely talking about the Union.

    I disagree. As set forth above, Board law is clear that an employer cannot prohibit employees from simply talking about a union, if it allows talking about other subjects. Since the judge correctly found that the employees did not engage in solicitation in violation of the rule, it follows that the Respondent violated Section 8 a 3 and 1 when it issued Smith a warning and demoted her, and when it issued warnings to Andrade, Salas, and Abundiz, all because of their protected activities on behalf of the Union.

    The Employer generally may prohibit distribution of Union literature on its premises by Non-Employee Union organizers, except in rare circumstances. Petitioner Lechmere, Inc. After Lechmere denied the organizers access to the lot, they distributed handbills and picketed from the grassy strip. The union filed an unfair labor practice charge with respondent National Labor Relations Board Board , alleging that Lechmere had violated the NLRA by barring the organizers from its property.

    The Board affirmed, relying on its ruling in Jean Country , N. Held: Lechmere did not commit an unfair labor practice by barring nonemployee union organizers from its property. Thus, as a rule, an employer cannot be compelled to allow nonemployee organizers onto his property. NLRB v. NLRB , U. Carpenters , Babcock arose out of union attempts to organize employees at a factory located on an isolated acre tract.

    The company had a policy against solicitation and distribution of literature on its property, which it enforced against all groups. Almost all employees drove to work in private cars and parked in a company lot that adjoined the fenced-in plant area. The parking lot could be reached only by a yard-long driveway connecting it to a public highway. This driveway was mostly on company-owned land, except where it crossed a foot-wide public right-of-way adjoining the highway. Union organizers attempted to distribute literature from this right-of-way.

    Still other employees were contacted by telephone or home visit. While acknowledging that there were alternative, non-trespassory means whereby the union could communicate with employees, the Board held that contact at the workplace was preferable. The Peerless Plywood rule, applicable to employers and unions alike, forbids election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for an election.

    Violation of this prohibition is a ground for setting aside the election whenever valid objections are filed. Peerless Plywood Co. This rule does not interfere with the rights of unions and employers to circulate campaign literature on or off the premises at any time prior to an election see General Electric Co. It forbids speeches, whether coercive or not see Excelsior Laundry Co. In Randell Warehouse of Arizona , NLRB , the Board found that union videotaping of the distribution of literature to employees as they accepted or rejected the literature is not objectionable.

    Randell Warehouse was decided by the Board after oral argument with a second case that was settled prior to decision. That second case dealt with the issue of employer videotaping. The majority and dissent disagreed over whether Allegheny Ludlum should apply to unions as well as employers. The Employer may not conduct surveillance of Employees engaging in Union activities regardless of whether i the Employees know of the surveillance or ii the surveillance is conducted by supervisors either encouraged by the Employer or acting on their own.

    The Employer is also prohibited from creating the impression among Employees that it is engaged in surveillance. Surveillance includes unjustified recording, photographing, or videotaping of protected activity. As more fully explained below, we agree with the judge that the Respondent did not violate Section 8 a 1 [of the National Labor Relations Act] by videotaping employees during a union rally.

    The rally leaders sat at the table with the crowd around them chanting for Plath to come out of the building, which he did for a short time. Martinez recorded about 19 minutes of videotape. The tape shows that demonstrators in the street significantly affected traffic. Traffic slowed to a crawl as some drivers attempted to negotiate through the crowd, while other drivers made U-turns to avoid the crowd.

    Martinez testified that he recognized only 12 of the demonstrators as being employees of the Respondent, while a union official testified that she recognized about 40 employees. Either way, a majority of the approximately demonstrators appeared not to be employees of the Respondent. Three employees eventually made their way into the office with a written demand for recognition, which the Respondent rejected.

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    Woolworth Co. Photographing and videotaping such activity clearly constitute more than mere observation, however, because such pictorial record keeping tends to create fear among employees of future reprisals. Rather, the Board requires an employer engaging in such photographing or videotaping to demonstrate that it had a reasonable basis to have anticipated misconduct by the employees.