Setting Aside Representation Elections because of Misrepresentations

The National Labor Relations Board has the power to set aside a representation election if certain behavior by the parties warrants that action.

When there is deliberate misrepresentation by the union or the employer about the material facts and the other party has no opportunity to reply, the election will be set aside. The reason for setting an election aside under these circumstances is because the misrepresentation may have had a significant impact on the election.

It is not enough that misstatements and misrepresentations were made by one party to warrant invalidating an election; it must also be shown that such statements or conduct impaired the integrity of the election so that it cannot be said to reflect the uninhibited desires of the employees with respect to their choice of a bargaining agent.

In an employer-friendly suit, an employer’s letter that opposed severance of a smaller unit from the larger unit and claimed workers would lose seniority was found to be permissible campaign propaganda. The Board reasoned the letter was just an expression of opinion as to the possible economic consequences of a decision by the voters to sever from the existing broader unit, and that such misrepresentations were not as to matters peculiarly within the knowledge of the employer and the petitioning union had full opportunity to rebut the statements.

When ruling on objections to conduct during a representation election, the Board balances the rights of employees to choose and the rights of the parties to wage a free and vigorous campaign in exercise of their rights of free speech. The tipping point of this balance is often in flux as new Members roll off and onto the NLRB. Consulting with legal counsel regarding the latest developments in this law is always a good idea when faced with a union organizing campaign at your company.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

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