The NLRB’s “Laboratory Conditions” Are Overdue for Inspection

Just like campaigns for political office, union representation election campaigns are characterized by bombast, bloviation, and apparent sincerity. But union elections are vastly more regulated and often are set aside for unfair campaign conduct. What is the statutory warrant and what are the intelligible principles laid down by Congress for setting aside the outcome of a union representation election?

Normally, within days after employees cast their secret ballots for or against union representation, the National Labor Relations Board certifies the result, unless the losing party files objections to the winner’s unfair election conduct. While the Act requires secret balloting, it says nothing expressly about objections, the Board’s evaluation of objections, or what the Board shall do if it finds unfair election conduct. The Board has created those rules partly through rulemaking but mostly through two types of adjudication: (1) unfair labor practice proceedings expressly authorized by 29 U.S.C. §§ 158 and 160, and (2) representation case hearings under 29 U.S.C. § 159. Section 159 speaks only of pre-election hearings and provides no standards for identifying or remedying unfair election conduct. Section 160 empowers the Board to issue cease and desist orders with ancillary “affirmative action” to remedy proven violations described as unfair labor practices in section 158. While the Act declares, in section 157, the right of employees “to bargain collectively through representatives of their own choosing,” nothing in the Act says or suggests that campaign misconduct—whether by commission of unfair labor practices or by other bad acts—should be defined or remedied differently depending on which party is objecting to its loss.

General Shoe and “Laboratory Conditions”

In several lines of precedent since the passage of the 1947 Taft-Hartley amendments, courts have ignored or glossed over this textual problem and have allowed the NLRB to police campaign misconduct quite closely. Most relevant here is the doctrine first announced in General Shoe Corporation. The Shoe Workers Union objected to its election loss at a plant in Pulaski, Tennessee, and charged the employer with co-extensive unfair labor practices. The employer’s president was shown to have lectured employees personally about their union support. Finding that no unfair labor practice had been proven, the Board nevertheless set aside the Union’s loss, stating in relevant part:

In election proceedings, it is the Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of employees. It is our duty to establish those conditions; it is also our duty to determine whether they have be[e]n fulfilled. When, in the rare, extreme case, the standard drops too low, because of our fault [footnote omitted] or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again.

In doing so, the Board dismissed free speech concerns by noting that the Act’s First Amendment corollary expressly applies only to unfair labor practice proceedings. This principle became known as the “laboratory conditions” doctrine.

The Supreme Court has referenced this doctrine when deciding other disputes about the Board’s policing of representation elections, most notably in Gissel Packing Co. The Court has never directly ruled on a contest of the Board’s textual warrant for the laboratory conditions standard, nor has the Court entertained a direct challenge to the Board’s professed neutral application of the standard.

When the General Shoe Is on the Other Foot

The 1948 Board was wrong by orders of magnitude in predicting that its laboratory conditions standard would be applied rarely to remedy only the most extreme campaign misconduct. And its implied promise of neutral application was equally unreliable. In fact, the Board, especially the current Board majority, has put employer expressions under a scanning electron microscope while turning a blind eye to union campaign shenanigans.

The current Board majority holds the mere maintenance of an employer work rule to be an unfair labor practice if a hypothetical, reasonable employee “who is economically dependent on her employer and thus inclined to interpret an ambiguous rule to prohibit protected activity . . . could reasonably interpret” the rule in that way. Under the current regime, an employer’s unfair conduct during an election campaign is grounds, not just for setting aside the union’s loss, but also for bypassing the election process and ordering the employer to bargain with the union as if the union had won the election. The current Board repeatedly has demonstrated eagerness even to set aside union defeats by ignoring or overruling its own precedent in this area, regardless of the need to do so in order to resolve the case.

Does it work both ways? No. There is no NLRB remedy for union campaign misconduct that mirrors a Cemex or Gissel bargaining order. So even if a union threatens opposing employees with physical violence, it only risks a rerun election. And the current Board certifies union wins despite proof of misconduct that, if done by an employer, would provoke a bargaining order.

Consider, for example, the Board’s decision in Amazon.com Services. In that case, the Board ruled after the union win that, even if the specifically alleged union misconduct incidents were proven, they would not justify setting aside the union’s victory. The employer alleged that the union had:

• Misrepresented to the Board the number of the proposed election voters desired the union’s representation;
• Trespassed on the employer’s property and physically disrupted its campaign meetings with employees;
• Engaged in misconduct calculated to provoke law enforcement response, then resisting and submitting to stage-managed arrests;
• Distributed marijuana to potential voters;
• Exploited union-friendly failure of Board agents to preserve the designated non-electioneering zone outside the polling locations;
• Maintained a physical presence of union-aligned media and union representatives among voters lined up to vote, with voters being recorded and filmed (permitted in part because the union representatives were not shown to have been “ubiquitous”);
• Threatened to “kick [an opposing employee’s] ass,” “take [her] outside,” and “beat [her] up.”

There was more—much more. You can look it up. And you should. But even in the aggregate, isn’t it clear that these incidents eroded laboratory conditions at least as much as a deeply buried employee handbook provision that no actual voter read or considered would have done?

There Must Be Some Way Out of Here

Statutory text is now the touchstone for judicial review of agencies’ perception of their powers and of their particular exercises of those powers. To date, the Board’s laboratory conditions doctrine has escaped that sort of review. Its grounding in the statutory text is doubtful. Both facially and as applied, it has serious First Amendment problems. Particular applications seem to run afoul of 5 U.S.C. § 706(2) and invite Equal Protection Clause scrutiny. The Board’s laboratory conditions doctrine has been a fugitive from justice long enough.